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FAMILIAR 


EXPOSITION  OF  THE  CONSTITUTION 

OF  THE 


UNITED  STATES: 


CONTAINING 


A  BRIEF  COMMENTARY 


ON  EVERY  CLAUSE,  EXPLAINING  THE  TRUE  NATURE,  REASONS,  AND  OBJECTS 
THEREOF;  DESIGNED  FOR  THE  USE  OF  SCHOOL  LIBRARIES 
AND  GENERAL  READERS. 


WITH 

AN  APPENDIX, 

CONTAINING  IMPORTANT  PUBLIC  DOCUMENTS,  ILLUSTRATIVE  OF 

THE  CONSTITUTION. 


BY  JOSEPH^TORY,  LL.  D. 

DANE  PROFESSOR  OF  LAW  IN  HARVARD  UNIVERSITY. 


u  This  Government,  the  offspring  of  our  own  choice,  uninfluenced  and  unawed, 
adopted  upon  full  investigation  and  mature  deliberation,  completely  free  in  its 
principles,  in  the  distribution  of  its  powers  uniting  security  with  energy,  and 
containing,  within  itself,  a  provision  for  its  own  amendment,  has  a  just  claim  to 
your  confidence  and  respect.”  —  President  Washington's  Farewell  Address  to  the 
People  of  the  United  States. 


BOSTON : 

TIIOMAS  H.  WEBB  &  CO. 


Entered  according  to  Act  of  Congress,  in  the  year  1840,  by 
Marsh,  Capen,  L^on,  and  Webb, 
in  the  Clerk's  Olhce  of  the  District  Court  of  Massachusetts. 


EDUCATION  PRESS 


> 


TO 

THE  PEOPLE 

OF  THE 


COMMONWEALTH  OF  MASSACHUSETTS, 

THIS  WORK, 

DESIGNED  TO  AID 

THE  CAUSE  OF  EDUCATION, 

AND 


TO  PROMOTE  AND  ENCOURAGE  THE  STUDY 

OF  THE 

'  CONSTITUTION  OF  THE  UNITED  STATES, 

BY  HER  INGENUOUS  YOUTH, 

IS  RESPECTFULLY  DEDICATED, 


BY  ONE 

WHO  GRATEFULLY  ACKNOWLEDGES,  THAT  HER 

TERRITORY  IS 


THE  LAND  OF  HIS  BIRTH, 

AND  THE 

HOME  OF  HIS  CHOICE, 

THE  AUTHOR. 


Cambridge ,  January  1,  1840, 


-•••*'  cT* 

#  PRIH  CjiTQIT  n 

,«tC,  FEB  1383 


% 


^THaQLQGIC&LJ 

Bh  §mi ir&si 


PREFACE. 


The  present  Work  is  designed,  not  only  for  private 
reading,  but  as  a  text  book  for  the  highest  classes  in  our 
Common  Schools  and  Academies.  It  is  also  adapted 
to  the  use  of  those,  who  are  more  advanced,  and  have 
left  school,  after  having  passed  through  the  common 
branches  of  education.  It  may  also  be  studied  with  ad¬ 
vantage  by  those,  who  have  arrived  at  maturer  years, 
but  whose  pursuits  have  not  allowed  them  leisure  to  ac¬ 
quire  a  thorough  knowledge  of  the  Republican  Consti¬ 
tution  of  Government,  under  which  they  live.  Some 
of  the  subjects,  which  are  here  treated  of,  may  seem 
remote  from  those  topics,  which  ordinarily  engage  the 
attention  of  our  youth,  and  some  of  them  may  seem  to 
be  of  such  an  abstract  political  nature,  that  the  full  value 
of  them  can  scarcely  be  felt,  except  by  persons,  who  have 
had  some  experience  of  the  duties  and  difficulties  of  so¬ 
cial  life.  But,  I  think,  that  it  will  be  found,  upon  closer 
examination,  that  an  objection  of  this  sort  can  properly 
apply  to  very  few  passages  in  the  Work  ;  and  that  even 
those,  which  fall  within  the  scope  of  the  objection,  will 
furnish  sources  of  reflection,  and  means  of  knowledge, 
which  will  essentially  aid  the  student  in  his  future  progress, 
and  place  him,  as  it  were,  upon  the  vantage  ground,  to 
master  the  leading  principles  of  politics,  and  public  policy. 
The  Work  has  been  framed  upon  the  basis  of  my  larger 

1* 


6 


PREFACE. 


Commentaries  on  the  Constitution,  which  are  already  be¬ 
fore  the  Public.  And  one  of  the  advantages,  which  it 
possesses,  is,  that  the  reader  will  find  every  one  of  the 
topics  here  discussed,  examined  almost  in  the  same  order, 
far  more  completely  in  those  Commentaries,  if  his  curi¬ 
osity  or  his  leisure  shall  prompt  him  to  more  thorough 
researches.  I  have  endeavored,  as  far  as  practicable,  to 
make  the  remarks  intelligible  to  every  class  of  readers,  by 
embodying  them  in  plain  and  unambitious  language,  so  as 
to  give  the  Work  a  just  claim  to  the  title  of  being  “  A 
Familiar  Exposition  of  the  Constitution  of  the  United 
States.”  If  it  shall  tend  to  awaken  in  the  bosoms  of 
American  Youth,  a  more  warm  and  devoted  attachment 
to  the  National  Union,  and  a  more  deep  and  firm  love  of 
the  National  Constitution,  it  will  afford  me  very  sincere 
gratification,  and  be  an  ample  compensation  for  the  time, 
which  has  necessarily  been  withdrawn  from  my  other 
pressing  avocations,  in  order  to  prepare  it. 

An  Appendix  has  been  added,  containing  some  im¬ 
portant  public  Documents,  which  may  serve  to  confirm 
or  illustrate  the  Text. 

With  these  few  suggestions,  I  submit  the  Work  to  the 
indulgent  consideration  of  the  Public,  adopting  the  ex¬ 
pressive  motto  of  the  poet, — 

“  Content,  if  here  th’  unlearned  their  wants  may  view, 

The  learned  reflect  on  what  before  they  knew.” 

Joseph  Story. 


Cambridge ,  January  1,  1840. 


V' 


1 


- 

r* 


CONTENTS. 


Page 

Q 

Dedication, .  a 

*  ) 

Preface, . 

CHAPTER  I. 

History  of  the  Colonies, .  H 

CHAPTER  II. 

Colonial  Governments, .  17 

CHAPTER  III. 

Origin  of  the  Revolution,  .  22 

CHAPTER  IV. 

Revolutionary  Government, .  26 

CHAPTER  V. 

History  of  the  Confederation, .  28 

CHAPTER  VI. 

Origin  of  the  Constitution, .  33 

CHAPTER  VII. 

Exposition  of  the  Constitution.— The  Preamble,  .  36 

CHAPTER  VIII. 

Distribution  of  Powers. —  The  Legislative  Depart¬ 
ment,  .  ^ 

CHAPTER  IX. 

The  House  of  Representatives, .  50 


8 


CONTENTS. 


CHAPTER  X. 

The  Senate, .  64 

CHAPTER  XI. 

Impeachments, .  76 

CHAPTER  XII. 

Elections,  and  Meetings  of  Congress,  ....  89 

CHAPTER  XIII. 

Powers  and  Privileges  of  both  Houses,  ....  90 

CHAPTER  XIV. 

Mode  of  Passing  Laws,  . .  96 

CHAPTER  XV. 

Powers  of  Congress. — Taxation, . 101 

CHAPTER  XVI. 

Power  to  borrow  Money  and  regulate  Commerce,  107 

CHAPTER  XVII. 

Naturalization,  Bankruptcy,  and  Coinage  of  Mon¬ 
ey,  .  113 

CHAPTER  XVIII. 

Post  Office  and  Post  Roads. — Patents  for  Inven¬ 
tions,  . / . 117 

CHAPTER  XIX. 

Punishment  of  Piracies  and  Felonies. — Declaration 

of  War, .  119 

CHAPTER  XX. 

Power  as  to  Army  and  Navy, . 122 

CPIAPTER  XXI. 

Power  over  Militia, . 125 

CHAPTER  XXII. 

Seat  of  Government,  and  other  Ceded  Places,  .  .  128 


CONTENTS. 


9 


CHAPTER  XXIII. 

General  Power  to  make  Necessary  and  Proper 

Laws, . 131 

CHAPTER  XXIV. 

Punishment  of  Treason. — State  Records,  .  .  .  134 

CHAPTER  XXV. 

Admission  of  New  States. — Government  of  Territo¬ 
ries,  .  .  .  137 

CHAPTER  XXVI. 

Prohibitions  on  the  United  States, . 142 

CHAPTER  XXVII. 

Prohibitions  on  the  States, . 146 

CHAPTER  XXVIII. 

4  v 

The  Executive  Department, . 158 

CHAPTER  XXIX. 

Powers  and  Duties  of  the  President, . 170 

'  -v!  &■* 

CHAPTER  XXX. 

The  Judicial  Department, . 179 

CHAPTER  XXXI. 

Powers  and  Jurisdiction  of  the  Judiciary,  .  .  .  186 

CHAPTER  XXXII. 

Trial  by  Jury,  and  its  Incidents. — Definition  of 

Treason, . 228 

CHAPTER  XXXIII. 

Privileges  of  Citizens. — Fugitive  Criminals  and 

Slaves, . 242 

CHAPTER  XXXIV. 

Guaranty  of  Republican  Government. -^-Mode  of 

making  Amendments,  . . 244 


10 


CONTENTS. 


CHAPTER  XXXV. 

Public  Debt. — Supremacy  of  the  Constitution  and 


Laws, . 248 

CHAPTER  XXXVI. 

Oath  of  Office. — Religious  Test. — Ratification  of 
the  Constitution, . 251 

CHAPTER  XXXVII. 

Amendments  to  the  Constitution, . 254 

CHAPTER  XXXVIII. 

Concluding  Remarks, . 267 


APPENDIX. 

Declaration  of  Rights  by  the  Continental 


Congress,  1774, .  271 

Declaration  of  Independence, . 275 

Articles  of  Confederation, . 279 


Constitution  of  the  United  States,  ....  289 

Washington’s  Farewell  Address, . 306 

Definitive  Treaty  of  Peace  between  the  Uni¬ 
ted  States  of  America  and  his  Britannic 


Majesty, . 324 

An  Ordinance  for  the  Government  of  the  Ter¬ 
ritory  of  the  United  States,  Northwest  of 
the  River  Ohio, . 329 

Glossary,  ...  * . 339 

Index, . 351 


A 


FAMILIAR  EXPOSITION 

OP  THE 

CONSTITUTION  OF  THE  UNITED  STATES. 


CHAPTER  I. 

History  of  the  Colonies. 

§  1.  Before  entering  upon  the  more  immediate  ob¬ 
ject  of  this  work,  which  is,  to  present  to  the  general 
reader  a  familiar  exposition  of  the  nature  and  objects  of 
the  different  provisions  of  the  Constitution  of  the  United 
States,  it  seems  proper  to  take  a  brief  review  of  the 
origin  and  settlement  of  the  various  States,  originally 
composing  the  Union,  and  their  political  relations  to  each 
other  at  the  time  of  its  adoption.  This  will  naturally 
conduct  us  back  to  the  American  Revolution,  and  to  the 
formation  of  the  Confederation  of  tire  States,  consequent 
thereon.  But  if  we  stop  here,  we  shall  still  be  surround¬ 
ed  by  difficulties,  unless  we  understand  the  political 
organization  of  the  various  colonies  during  their  common 
dependence  upon  the  sovereignty  of  Great  Britain,  and  we 
are  in  some  degree  made  acquainted  with  the  domestic 
institutions,  policy,  and  legislation,  which  impressed  upon 
each  of  them  some  peculiar  habits,  interests,  opinions, 
attachments,  and  even  prejudices,  which  may  still  be 
traced  in  the  actual  jurisprudence  of  each  State,  and  are 
openly  or  silently  referred  to  in  some  of  the  provisions 
of  the  Constitution  of  Government,  by  which  they  are 


12 


CONSTITUTION  OF  THE  UNITED  STATES. 


now  united.  This  review  will,  however,  contain  but  a 
rapid  glance  at  these  various  important  topics,  and  the 
reader  must  be  left  to  satisfy  his  further  inquiries  by  the 
study  of  works  of  a  more  large  and  comprehensive  char¬ 
acter. 

§  2.  The  Thirteen  American  Colonies  which,  on  the 
fourth  day  of  July,  1776,  declared  themselves  free  and 
independent  States,  were  New  Hampshire,  Massachu¬ 
setts,  Rhode  Island,  Connecticut,  New  York,  New 
Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia, 
North  Carolina,  South  Carolina,  and  Georgia.  All 
these  colonies  were  originally  settled  by  British  subjects, 
under  the  express  or  implied  authority  of  the  government 
of  Great  Britain,  except  New  York,  which  was  originally 
settled  by  emigrants  from  Holland,  and  Delaware,  which, 
although  at  one  time  an  appendage  to  the  Government 
of  New  York,  was  at  first  principally  inhabited  by  the 
Dutch  and  Swedes.  The  British  government,  however, 
claimed  the  territory  of  all  these  colonies  by  the  right  of 
original  discovery,  and  at  all  times  resisted  the  claim  of 
the  Dutch  to  make  any  settlement  in  America.  The 
Colony  of  New  York  became,  at  an  early  period,  subject 
to  British  authority  by  conquest  from  the  Dutch.  Del¬ 
aware  was  soon  separated  from  New7  York,  and  was 
afterwards  connected  with,  and  a  dependency  upon,  the 
proprietary  government  of  Pennsylvania.  The  other 
States,  now  belonging  to  the  Union,  had  no  existence  at 
the  time  of  the  Declaration  of  Independence  ;  but  have 
since  been  established  within  the  territory,  which  was 
ceded  to  the  United  States  by  the  Treaty  of  Peace  with 
Great  Britain  in  1783,  or  within  the  territory,  which  has 
been  since  acquired  by  the  United  States,  by  purchase 
from  other  nations;  ^  '  ** - 

§  3.  At  the  time  of  the  discovery  of  America,  towards 
the  close  of  the  fifteenth  century,  (1492,)  the  various 
Indian  tribes,  which  then  inhabited  it,  maintained  a  claim 
to  the  exclusive  possession  and  occupancy  of  the  terri¬ 
tory  within  their  respective  limits,  as  sovereign  proprie¬ 
tors  of  the  soil.  They  acknowledged  no  obedience,  nor 
allegiance,  nor  subordination  to  any  foreign  nation  whatso- 


HISTORY  OF  THE  COLONIES. 


13 


ever  ;  and,  as  far  as  they  have  possessed  the  means, 
they  have  ever  since  constantly  asserted  this  full  right  of 
dominion,  and  have  yielded  it  up  only,  when  it  has  been 
purchased  from  them  by  treaty,  or  obtained  by  force  of 
arms  and  conquest.  In  short,  like  all  the  civilized  na¬ 
tions  of  the  earth,  the  Indian  tribes  deemed  themselves 
rightfully  possessed,  as  sovereigns,  of  all  the  territories, 
within  which  they  were  accustomed  to  hunt,  or  to  exer¬ 
cise  other  acts  of  ownership,  upon  the  common  principle, 
that  the  exclusive  use  gave  them  an  exclusive  right  to 
the  soil,  whether  it  was  cultivated  or  not. 

§  4.  It  is  difficult  to  perceive,  why  their  title  was  not, 
in  this  respect,  as  well  founded  as  the  title  of  any  other 
nation,  to  the  soil  within  its  own  boundaries.  How, 
then,  it  may  be  asked,  did  the  European  nations  acquire 
the  general  title,  which  they  have  always  asserted  to  the 
whole  soil  of  America,  even  to  that  in  the  occupancy  of 
the  Indian  tribes  ?  The  only  answer,  which  can  be 
given,  is,  their  own  assertion,  that  they  acquired  a  gen¬ 
eral  title  thereto  in  virtue  of  their  being  the  first  discover¬ 
ers  thereof,  or,  in  other  words,  that  their  title  was  founded 
upon  the  right  of  discovery.  They  established  the  doc¬ 
trine,  (whether  satisfactorily  or  not  is  quite  a  different 
question,)  that  discovery  is  a  sufficient  foundation  for  the 
right  to  territory.  As  between  themselves,  with  a  view 
to  prevent  contests,  where  the  same  land  had  been  visit¬ 
ed  by  the  subjects  of  different  European  nations,  each  of 
which  might  claim  it  as  its  own,  there  was  no  inconve¬ 
nience  in  allowing  the  first  discoverer  to  have  the  priority 
of  right,  where  the  territory  was  at  the  time  desert  and  un¬ 
inhabited.  But  as  to  nations,  which  had  not  acceded  to 
the  doctrine,  and  especially  as  to  countries  in  the  posses¬ 
sion  of  native  inhabitants  and  tribes  at  the  time  of  the 
discovery,  it  seems  difficult  to  perceive,  what  ground  of 
right  any  discovery  could  confer.  It  would  seem  strange 
to  us,  if,  in  the  present  times,  the  natives  of  the  South 
Sea  Islands,  or  of  Cochin  China,  should,  by  making  a 
voyage  to,  and  a  discovery  of,  the  United  States,  on  that 
account  set  up  a  right  to  the  soil  within  our  boundaries. 

§  5.  The  truth  is,  that  the  European  nations  paid  not 
2  xiii. 


14 


CONSTITUTION  OF  THE  UNITED  STATES. 


the  slightest  regard  to  the  rights  of  the  native  tribes.  They 
treated  them  as  mere  barbarians  and  heathens,  whom, 
if  they  were  not  at  liberty  to  extirpate,  they  were  entitled 
to  deem  mere  temporary  occupants  of  the  soil.  They 
might  convert  them  to  Christianity  ;  and,  if  they  refus¬ 
ed  conversion,  they  might  drive  them  from  the  soil,  as 
unworthy  to  inhabit  it.  They  affected  to  be  governed 
by  the  desire  to  promote  the  cause  of  Christianity,  and 
were  aided  in  this  ostensible  object  by  the  whole  in¬ 
fluence  of  the  Papal  power.  But  their  real  object  was, 
to  extend  their  own  power,  and  increase  their  own  wealth, 
by  acquiring  the  treasures,  as  well  as  the  territory,  of  the 
New  World.  Avarice  and  ambition  were  at  the  bottom 
of  all  their  original  enterprises. 

§  6.  The  right  of  discovery,  thus  asserted,  has  be¬ 
come  the  settled  foundation,  on  which  the  European  na¬ 
tions  rest  their  title  to  territory  in  America  ;  and  it  is  a 
right,  which,  under  our  governments,  must  now  be  deem¬ 
ed  incontestable,  however  doubtful  in  its  origin,  or  unsat¬ 
isfactory  in  its  principles.  The  Indians,  indeed,  have 
not  been  treated  as  mere  intruders,  but  as  entitled  to  a 
qualified  right  of  property  in  the  territory.  They  have 
been  deemed  to  be  the  lawful  occupants  of  the  soil,  and 
entitled  to  a  temporary  possession  thereof,  subject  to  the 
superior  sovereignty  of  the  particular  European  nation, 
which  actually  held  the  title  of  discovery.  They  have 
not,  indeed,  been  permitted  to  alienate  their  posses¬ 
sory  right  to  the  soil,  except  to  the  nation,  to  whom  they 
were  thus  bound  by  a  qualified  dependence.  But  in 
other  respects,  they  have  been  left  to  the  free  exercise  of 
internal  sovereignty,  in  regard  to  the  members  of  their  own 
tribe,  and  in  regard  to  their  intercourse  with  other  tribes  ; 
and  their  title  to  the  soil,  by  way  of  occupancy,  has  been 
generally  respected,  until  it  has  been  extinguished  by 
purchase,  or  by  conquest,  under  the  authority  of  the  na¬ 
tion,  upon  which  they  were  dependent.  A  large  portion 
of  the  territory  in  the  United  States,  to  which  the  Indian 
title  is  now  extinguished,  has  been  acquired  by  purchase  ; 
and  a  still  larger  portion  by  the  irresistible  power  of  arms, 
over  a  brave,  hardy,  but  declining  race,  whose  destiny 


HISTORY  OF  THE  COLONIES. 


15 


seems  to  be,  to  perish  as  fast  as  the  white  man  advances 
upon  their  footsteps. 

§  7.  Having  thus  traced  out  the  origin  of  the  title  to  the 
soil  of  America,  asserted  by  the  European  nations,  we  may 
now  enter  upon  a  brief  statement  of  the  times  and  man¬ 
ner,  in  which  the  different  settlements  were  made,  in  the 
different  colonies,  which  originally  composed  the  Union,  at 
the  time  of  the  Declaration  of  Independence.  The  first 
permanent  settlement  made  in  America,  under  the  aus¬ 
pices  of  England,  was  under  a  charter  granted  by  King 
Janies  L,  in  1606.  By  this  charter,  he  granted  all  the 
lands  lying  on  the  seacoast  between  the  thirty-fourth  and 
the  forty-fifth  degrees  of  north  latitude,  and  the  islands 
adjacent,  within  one  hundred  miles,  which  were  not  then 
belonging  to,  or  possessed  by,  any  Christian  prince  or  peo¬ 
ple.  The  associates  were  divided  into  two  companies  ; 
one,  the  First,  or  Southern  Colony,  to  which  was  grant¬ 
ed  all  the  lands  between  the  thirty-fourth  and  forty-first 
degrees  of  north  latitude  ;  and  the  other,  the  Second,  or 
Northern  Colony,  to  which  was  granted  all  the  lands  be¬ 
tween  the  thirty-eighth  and  forty-fifth  degrees  of  north  lat¬ 
itude,  but  not  within  one  hundred  miles  of  the  prior  Col¬ 
ony.  Each  Colony  was  declared  to  have  the  exclusive 
propriety  or  title  in  all  the  territory  within  fifty  miles  from 
the  seat  of  its  first  plantation.  The  name  of  Virginia 
was  in  general  confined  exclusively  to  the  Southern  Col¬ 
ony  ;  and  the  name  of  the  Plymouth  Company  (from  the 
place  of  residence  of  the  original  grantees  in  England) 
was  assumed  by  the  Northern  Colony.  From  the  for¬ 
mer,  the  States  south  of  the  Potomac  may  be  said  to  have 
had  their  origin  ;  and  from  the  latter,  the  States  of  New 
England. 

§  8.  Some  of  the  provisions  of  this  charter  deserve  a 
particular  consideration,  from  the  light,  which  they  throw 
upon  the  civil  and  political  condition  of  the  persons,  who 
should  become  inhabitants  of  the  Colonies.  The  two 
companies  were  authorized  to  engage,  as  colonists,  any  of 
the  subjects  of  England,  who  should  be  disposed  to  emi¬ 
grate.  All  persons,  being  English  subjects,  and  inhabit¬ 
ants  in  the  Colonies,  and  their  children  born  therein,  were 


16  CONSTITUTION  OF  THE  UNITED  STATES. 


declared  to  have  and  possess  all  liberties,  franchises,  and 
immunities  of  subjects  within  any  dominions  of  the  Crown 
of  England,  to  all  intents  and  purposes,  as  if  they  were 
born  and  abiding  within  the  realm  or  other  dominions  of 
that  Crown.  The  original  grantees,  or  patentees,  W'ere  to 
hold  the  lands  and  other  territorial  rights  in  the  Colonies, 
of  the  King,  his  heirs  and  successors,  in  the  same  manner 
as  the  manor  of  East  Greenwich,  in  the  county  of  Kent, 
in  England,  was  held  of  him,  in  free  and  common  socage, 
and  not  in  capite,  (as  it  was  technically  called,)  that  is 
to  say,  by  a  free  and  certain  tenure,  as  contradistinguished 
from  a  military  and  a  servile  tenure, — a  privilege  of  ines¬ 
timable  value,  as  those,  who  are  acquainted  with  the  his¬ 
tory  of  the  feudal  tenures,  well  know.*  The  patentees 
were  also  authorized  to  grant  the  same  lands  to  the  inhab¬ 
itants  of  the  Colonies  in  such  form  and  manner,  and  for 
such  estates,  as  the  Council  of  the  Colony  should  direct.. 
These  provisions  were,  in  substance,  incorporated  into  all 
the  charters  subsequently  granted  by  the  Crown  to  the  dif¬ 
ferent  Colonies,  and  constituted  also  the  basis,  upon  which 
all  the  subsequent  settlements  were  made. 

§  9.  The  Colony  of  Virginia  was  the  earliest  in  its 
origin,  being  settled  in  1606.  The  Colony  of  Plymouth 
(which  afterwards  was  united  with  Massachusetts,  in  1692) 
was  settled  in  1620  ;  the  Colony  of  Massachusetts  in 
1628  ;  the  Colony  of  New  Hampshire  in  1629  ;  the  Col¬ 
ony  of  Maryland  in  1632  ;  the  Colony  of  Connecticut  in 
1635  ;  the  Colony  of  Rhode  Island  in  1636  ;  the  Colony 
of  New  York  in  1662  ;  the  Colonies  of  North  and  South 
Carolina  in  1663  ;  the  Colony  of  New  Jersey  in  1664  ; 
the  Colony  of  Pennsylvania  in  1681  ;  the  Colony  of  Del¬ 
aware  in  1682  ;  and  the  Colony  of  Georgia  in  1732.  In 
using  these  dates,  we  refer  not  to  any  sparse  and  discon¬ 
nected  settlements  in  these  Colonies,  (which  had  been 
made  at  prior  periods,)  but  to  the  permanent  settlements 
made  under  distinct  and  organized  governments. 

*  On  this  subject,  the  reader  can  consult  the  history  of  the  ancient 
and  modern  English  tenures  in  Blackstone’s  Commentaries,  vol.  xL 
chs.  5  and  6,  p.  59  to  p.  103.. 


COLONIAL  GOVERNMENTS. 


17 


CHAPTER  II. 

Colonial  Governments. 

§  10.  Let  us  next  proceed  to  the  consideration  of  the 
political  Institutions  and  forms  of  Government,  which 
were  established  in  these  different  Colonies,  and  existed 
here  at  the  commencement  of  the  Revolution.  The 
governments  originally  formed  in  these  different  Colonies 
may  be  divided  into  three  sorts,  viz.,  Provincial,  Propri¬ 
etary,  and  Charter,  Governments.  First,  Provincial 
Governments.  These  establishments  existed  under  the 
direct  and  immediate  authority  of  the  King  of  England, 
without  any  fixed  constitution  of  government ;  the  organ¬ 
ization  being  dependent  upon  the  respective  commissions 
issued  from  time  to  time  by  the  Crown  to  the  royal  gov¬ 
ernors,  and  upon  the  instructions,  which  usually  accompa¬ 
nied  those  commissions.  The  Provincial  Governments 
were,  therefore,  wholly  under  the  control  of  the  King, 
and  subject  to  his  pleasure.  The  form  of  government, 
however,  in  the  Provinces,  was  at  all  times  practically  the 
same,  the  commissions  being  issued  in  the  same  form. 
The  commissions  appointed  a  Governor,  who  was  the 
King’s  representative,  or  deputy  ;  and  a  Council,  who, 
besides  being  a  part  of  the  Legislature,  were  to  assist  the 
Governor  in  the  discharge  of  his  official  duties  ;  and  both 
the  Governor  and  the  Council  held  their  offices  during  the 
pleasure  of  the  Crown.  The  commissions  also  contained 
authority  to  the  Governor  to  convene  a  general  assembly 
of  the  representatives  of  the  freeholders  and  planters  in 
the  Province  ;  and  under  this  authority,  Provincial  As¬ 
semblies,  composed  of  the  Governor,  the  Council,  and 
the  Representatives,  were,  from  time  to  time,  constituted 
and  held.  The  Representatives  composed  the  lower 
house,  as  a  distinct  branch  ;  the  Council  composed  the 
upper  house  ;  and  the  Governor  had  a  negative  upon  all 
their  proceedings,  and  the  power  to  prorogue  and  dis- 


CONSTITUTION  OP  THE  UNITED  STATES, 


solve  them.  The  Legislature,  thus  constituted,  had 
power  to  make  all  local  laws  and  ordinances  not  repug¬ 
nant  to  the  laws  of  England,  but,  as  near  as  might  conve¬ 
niently  be,  agreeable  thereto,  subject  to  the  ratification  or 
disapproval  of  the  Crown.  The  Governor  appointed  the 
judges  and  magistrates,  and  other  officers  of  the  Province, 
and  possessed  other  general  executive  powers.  Under 
this  form  of  government,  New  Hampshire,  New  York, 
Virginia,  North  Carolina,  South  Carolina,  and  Georgia, 
were  governed,  as  provinces,  at  the  commencement  of  the 
American  Revolution  ;  and  some  of  them  had  been  so 
governed  from  an  early  period  of  their  settlement. 

§  11.  Secondly,  Proprietary  Governments.  These 
were  grants  by  letters  patent  (or  open,  written  grants  un¬ 
der  the  great  seal  of  the  kingdom)  from  the  Crown  to 
one  or  more  persons  as  Proprietary  or  Proprietaries,  con¬ 
veying  to  them  not  only  the  rights  of  the  soil,  but  also 
the  general  powers  of  government  within  the  territory  so 
granted,  in  the  nature  of  feudatory  principalities,  or  de¬ 
pendent  royalties.  So  that  they  possessed  within  their 
own  domains  nearly  the  same  authority,  which  the  Crown 
possessed  in  the  Provincial  Governments,  subject,  how¬ 
ever,  to  the  control  of  the  Crown,  as  the  paramount  sov¬ 
ereign,  to  whom  they  owed  allegiance.  In  the  Proprie¬ 
tary  Governments,  the  Governor  was  appointed  by  the 
Proprietary  or  Proprietaries  ;  the  Legislature  was  organ¬ 
ized  and  convened  according  to  his  or  their  will  ;  and  the 
appointment  of  officers,  and  other  executive  functions  and 
prerogatives,  were  exercised  by  him  or  them,  either  per¬ 
sonally,  or  by  the  Governors  for  the  time  being.  Of 
these  Proprietary  governments,  three  only  existed  at  the 
time  of  the  American  Revolution,  viz.,  Maryland,  held 
by  Lord  Baltimore,  as  Proprietary,  and  Pennsylvania 
and  Delaware,  held  by  William  Penn,  as  Proprietary. 

§  12.  Thirdly,  Charter  Governments.  These  were 
great  political  corporations,  created  by  letters  patent,  or 
grants  of  the  Crown,  which  conferred  on  the  grantees 
and  their  associates  not  only  the  soil  within  their  territorial 
limits,  but  also  all  the  high  powers  of  legislation  and  gov¬ 
ernment.  The  charters  contained,  in  fact,  a  fundamental 


COLONIAL  GOVERNMENTS. 


19 


constitution  for  the  Colony,  distributing  the  powers  of 
government  into  three  great  departments,  legislative, 
executive,  and  judicial  ;  providing  for  the  mode,  in  which 
these  powers  should  be  vested  and  exercised  ;  and  se¬ 
curing  to  the  inhabitants  certain  political  privileges  and 
rights.  The  appointment  and  authority  of  the  Governor, 
the  formation  and  structure  of  the  Legislature,  and  the  es¬ 
tablishment  of  courts  of  justice,  were  specially  provided 
for  ;  and  generally  the  powers  appropriate  to  each  were 
defined.  The  only  Charter  Governments  existing  at  the 
time  of  the  American  Revolution,  were  Massachusetts, 
Rhode  Island,  and  Connecticut. 

§  13.  The  Charter  Governments  differed  from  the 
Provincial,  principally  in  this,  that  they  were  not  imme¬ 
diately  under  the  authority  of  the  Crown,  nor  bound  by 
any  of  its  acts,  which  were  inconsistent  with  their  char¬ 
ters  ;  whereas  the  Provincial  Governments  were  entirely 
subjected  to  the  authority  of  the  Crown.  They  differed 
from  the  Proprietary  Governments  in  this,  that  the  latter 
were  under  the  control  and  authority  of  the  Proprietaries, 
as  substitutes  of  the  Crown,  in  all  matters,  not  secured 
from  such  control  and  authority  by  the  original  grants  ; 
whereas,  in  the  Charter  Governments,  the  powers  were 
parcelled  out  among  the  various  departments  of  govern¬ 
ment,  and  permanent  boundaries  were  assigned  by  the 
charter  to  each. 

§  14.  Notwithstanding  these  differences  in  their  ori¬ 
ginal  and  actual  political  organization,  the  Colonies,  at  the 
time  of  the  American  Revolution,  in  most  respects,  enjoy¬ 
ed  the  same  general  rights  and  privileges.  In  all  of  them, 
there  existed  a  Governor,  a  Council,  and  a  Representative 
Assembly,  composed  of  delegates  chosen  by  the  people,  by 
whom  the  legislative  and  executive  functions  were  exer¬ 
cised  according  to  the  particular  organization  of  the 
Colony.  In  all  of  them,  the  legislative  power  extended  to 
all  local  subjects,  and  was  subject  only  to  this  restriction, 
that  the  laws  should  not  be  repugnant  to,  but,  as  far  as  con¬ 
veniently  might  be,  agreeable  to,  the  laws  and  customs  of 
England.  In  all  of  them,  express  provision  was  made, 
that  all  subjects,  and  their  children,  inhabiting  in  the 


20  CONSTITUTION  OF  THE  UNITED  STATES. 

Colonies,  should  be  deemed  natural-born  subjects,  and 
should  enjoy  all  the  privileges  and  immunities  thereof. 
In  all  of  them,  the  common  law  of  England,  as  far  as  it 
was  applicable  to  their  situation,  was  made  the  basis  of 
their  jurisprudence  ;  and  that  law  was  asserted  at  all  times 
by  them  to  be  their  birthright  and  inheritance. 

§  15.  It  may  be  asked,  how  the  common  law  of 
England  came  to  be  the  fundamental  law  of  all  the  Col¬ 
onies.  It  may  be  answered  in  a  few  words,  that,  in  all 
the  Proprietary  and  Charter  Governments,  there  was  an 
express  restriction,  that  no  laws  should  be  made  repug¬ 
nant  to  those  of  England,  but,  as  near  as  they  might 
conveniently  be,  should  be  consonant  and  conformable 
thereto,  and,  either  expressly  or  by  necessary  implication, 
it  was  provided,  that  the  law  of  England,  so  far  as  it  was 
applicable  to  the  state  of  the  Colonies,  should  be  in  force 
there.  In  the  Provincial  Governments  the  same  pro¬ 
visions  were  incorporated  into  all  the  royal  commissions. 
It  may  be  added,  that  the  common  law  of  England  was 
emphatically  the  law  of  a  free  nation,  and  secured  the 
public  and  private  rights  and  liberties  of  the  subjects 
against  the  tyranny  and  oppression  of  the  Crown.  Many 
of  these  rights  and  liberties  were  proclaimed  in  Magna 
Charta,  (as  it  is  called,)  that  instrument  containing  a  de¬ 
claration  of  rights  by  the  peers  and  commons  of  England, 
wrung  from  King  John,  and  his  son,  Henry  III.,  by  the 
pressure  of  stern  necessity.  But  Magna  Charta  would 
itself  have  been  but  a  dead  letter,  if  it  had  not  been  sus¬ 
tained  by  the  powerful  influences  of  the  common  law,  and 
the  right  of  trial  by  jury.  Accordingly,  our  ancestors  at 
all  times  strenuously  maintained,  that  the  common  law 
wras  their  birthright,  and  (as  we  shall  presently  see)  in 
the  first  revolutionary  Continental  Congress,  in  1774, 
unanimously  resolved,  that  the  respective  Colonies  are 
entitled  to  the  common  law,  and  more  especially  to  the 
great  and  inestimable  privilege  of  being  tried  by  their 
peers  of  the  vicinage  according  to  the  course  of  that  law. 

§  16.  Independently,  however,  of  the  special  recog¬ 
nitions  of  the  Crown,  there  is  a  great  conservative  prin¬ 
ciple  in  the  common  law  of  England,  which  would  have 


COLONIAL  GOVERNMENTS. 


21 


insured  to  our  ancestors  the  right  to  partake  of  its  pro¬ 
tection,  its  remedial  justice,  and  its  extensive  blessings. 
It  is  a  well-settled  doctrine  of  that  law,  that,  if  an  unin¬ 
habited  country  is  discovered  and  planted  by  British 
subjects,  the  laws  of  England,  so  far  as  they  are  ap¬ 
plicable,  are  there  held  immediately  in  force  ;  for,  in  all 
such  cases,  the  subjects,  wherever  they  go,  carry  those 
laws  with  them.  This  doctrine  has  been  adopted,  to 
save  the  subjects,  in  such  desert  places,  from  being  left 
in  a  state  of  utter  insecurity,  from  the  want  of  all  laws  to 
govern  them,  and  from  being  thus  reduced  to  a  mere  state 
of  nature.  On  the  contrary,  where  new  countries  are 
obtained  by  cession  or  conquest,  a  different  rule  exists. 
The  Crown  has  the  sole  and  exclusive  right  to  abrogate  the 
existing  laws,  and  to  prescribe,  what  new  laws  shall  prevail 
there  ;  although,  until  the  pleasure  of  the  Crown  is  made 
known,  the  former  laws  are  deemed  to  remain  in  force. 
Attempts  were  made  to  hold  the  American  Colonies  to 
be  in  this  latter  predicament,  that  is,  to  be  territories 
ceded  by  or  conquered  from  the  Indians.  But  the  pre¬ 
tension  was  always  indignantly  repelled  ;  and  it  wras  in¬ 
sisted,  that  the  sole  claim  of  England  thereto  being 
founded  on  the  mere  title  of  discovery,  the  colonists 
brought  thither  all  the  laws  of  the  parent  country,  which 
were  applicable  to  their  situation. 

§  17.  We  may  thus  see,  in  a  clear  light,  the  manner, 
in  which  the  common  law  was  first  introduced  into  the 
Colonies,  and  also  be  better  enabled  to  understand  the 
true  nature  and  reason  of  the  exceptions  to  it,  which  are 
to  be  found  in  the  laws  and  usages  of  the  different  Col¬ 
onies.  The  general  basis  was  the  same  in  all  the  Colo¬ 
nies.  But  the  entire  system  was  not  introduced  into  any 
one  Colony,  but  only  such  portions  of  it,  as  were  adapted 
to  its  own  wants,  and  were  applicable  to  its  own  situation. 
Hence  the  common  law  can  hardly  be  affirmed  to  have 
been  exactly,  in  all  respects,  the  same  in  all  the  Colonies. 
Each  Colony  selected  for  itself,  and  judged  for  itself, 
what  was  most  consonant  to  its  institutions,  and  best 
adapted  to  its  civil  and  political  arrangements  ;  and,  while 
the  main  principles  were  every  where  the  same,  there 


22  CONSTITUTION  OF  THE  UNITED  STATES. 

were  endless  minute  usages  and  local  peculiarities,  in 
which  they  differed  from  each  other. 

§  18.  Thus  limited  and  defined  by  the  colonists 
themselves,  in  its  actual  application,  the  common  law 
became  the  guardian  of  their  civil  and  political  rights  ;  it 
protected  their  infant  liberties  ;  it  watched  over  their 
maturer  growth  ;  it  expanded  with  their  wants  ;  it  nour¬ 
ished  in  them  that  spirit  of  independence,  which  checked 
the  first  approaches  of  arbitrary  power  ;  it  enabled  them 
to  triumph  in  the  midst  of  dangers  and  difficulties  ;  and 
by  the  good  providence  of  God,  we,  their  descendants, 
are  now  enjoying,  under  its  bold  and  manly  principles,  the 
blessings  of  a  free  and  enlightened  administration  of  public 
justice. 

§  19.  Having  made  these  preliminary  observations, 
we  may  now  advance  to  the  consideration  of  the  political 
state  of  the  Colonies  at  the  time  of  the  Revolution  ;  and 
trace  its  origin  and  causes.  The  natural  inquiries  here 
are  ;  What,  at  this  period,  were  their  admitted  rights  and 
prerogatives  ?  What  were  their  civil  and  political  relations 
with  the  parent  country  ?  To  what  extent  were  they 
dependent  upon  the  parent  country  ?  What  were  the 
limits  of  the  sovereignty,  which  either  Parliament,  or  the 
King,  might  rightfully  exercise  over  them  ?  These  are 
questions  of  deep  importance  ;  but  they  are  more  easily 
put,  than  answered.  A  full  explanation  of  them  is  incom¬ 
patible  with  the  narrow  limits  prescribed  to  the  present 
work  ;  but  a  brief  summary  of  some  of  the  leading  views 
may  not  be  without  use. 


CHAPTER  III. 

Origin  of  the  Revolution. 

§  20.  The  Colonies,  at  the  time  of  the  Revolution, 
considered  themselves,  not  as  parcel  of  the  realm  of 
Great  Britain,  but  as  dependencies  of  the  British  Crown, 
and  owing  allegiance  thereto,  the  King  being  their  su- 


ORIGIN  OF  THE  REVOLUTION. 


23 


preme  and  sovereign  lord.  In  virtue  of  this  supremacy, 
the  King  exercised  the  right  of  hearing  appeals  from  the 
decisions  of  the  courts  of  the  last  resort  in  the  Colonies  ; 
of  deciding  controversies  between  the  Colonies  as  to  their 
respective  jurisdictions  and  boundaries  ;  and  of  requiring 
each  Colony  to  conform  to  the  fundamental  laws  and  con¬ 
stitution  of  its  own  establishment,  and  to  yield  due  obedi¬ 
ence  in  all  matters  belonging  to  the  paramount  sovereignty 
of  the  Crown. 

§  21.  Although  the  Colonies  had  a  common  origin 
and  common  right,  and  owed  a  common  allegiance,  and 
the  inhabitants  of  all  of  them  were  British  subjects,  they 
had  no  direct  political  connection  with  each  other. 
Each  colony  was  independent  of  the  others  ;  and  there 
was  no  confederacy  or  alliance  between  them.  The 
legislature  of  one  could  not  make  Jaws  for  another,  nor 
confer  privileges  to  be  enjoyed  in  another.  They  were 
also  excluded  from  all  political  connection  with  foreign 
nations  ;  and  they  followed  the  fate  and  fortunes  of  the 
parent  country  in  peace  and  in  war.  Still  the  colonists 
were  not  wholly  alien  to  each  other.  On  the  contrary, 
they  were  fellow  subjects,  and,  for  many  purposes,  one 
people.  Every  colonist  had  a  right  to  inhabit,  if  he 
pleased,  in  any  other  Colony  ;  to  trade  therewith  ;  and  to 
inherit  and  hold  lands  there. 

§  22.  The  nature  and  extent  of  their  dependency 
upon  the  parent  country  is  not  so  easily  stated  ;  or,  rather, 
it  was  left  in  more  uncertainty  ;  the  claims  on  either  side 
not  being  always'  well  defined,  nor  clearly  acquiesced  in. 
The  Colonies  claimed  exclusive  authority  to  legislate  on 
all  subjects  of  local  and  internal  interest  and  policy. 
But  they  did  not  deny  the  right  of  Parliament  to  regulate 
their  foreign  commerce,  and  their  other  external  concerns, 
or  to  legislate  upon  the  common  interests  of  the  whole  em¬ 
pire.  On  the  other  hand,  the  Crown  claimed  a  right  to  ex¬ 
ercise  many  of  its  prerogatives  in  the  Colonies  ;  and  the 
British  Parliament,  although  it  practically  interfered  little 
with  their  internal  affairs,  yet  theoretically  maintained  the 
right  to  legislate  over  them  in  all  cases  whatsoever. 

§  23.  As  soon  as  any  systematic  effort  was  made  by 


24  CONSTITUTION  OF  THE  UNITED  STATES. 

the  British  Parliament  practically  to  exert  over  the  Colo¬ 
nies  the  power  of  internal  legislation  and  taxation,  as  was 
attempted  by  the  Stamp  Act,  in  1765,  it  was  boldly  re¬ 
sisted  ;  and  it  brought  on  the  memorable  controversy, 
which  terminated  in  their  Independence,  first  asserted  by 
them  in  1776,  and  finally  admitted  by  Great  Britain  by 
the  Treaty  of  1783.  At  an  early  period  of  that  contro¬ 
versy,  the  first  Continental  Congress,  in  1774,  drew  up 
and  unanimously  adopted  a  declaration  of  the  rights  of 
the  Colonies,  the  substance  of  which  is  as  follows  :  (1.) 
That  they  are  entitled  to  life,  liberty,  and  property  ;  and 
they  have  never  ceded  to  any  sovereign  power,  whatever, 
a  right  to  dispose  of  either  without  their  consent.  (2.) 
That  our  ancestors,  who  first  settled  the  Colonies,  were, 
at  the  time  of  their  emigration  from  the  mother  country, 
entitled  to  all  the  rights,  liberties,  and  immunities  of  free 
and  natural-born  subjects  within  the  realm  of  England. 
(3.)  That  by  such  emigration  they  by  no  means  forfeited, 
surrendered,  or  lost  any  of  those  rights  ;  but  that  they 
were,  and  their  descendants  now  are,  entitled  to  the  ex¬ 
ercise  and  enjoyment  of  all  such  of  them,  as  their  local 
and  other  circumstances  enable  them  to  exercise  and  en¬ 
joy.  (4.)  That  the  foundation  of  English  liberty  is  a 
right  in  the  people  to  participate  in  their  legislative  coun¬ 
cils  ;  and  as  the  English  colonists  are  not  represented, 
and,  from  their  local  and  other  circumstances,  cannot 
properly  be  represented,  in  the  British  Parliament,  they 
are  entitled  to  a  free  and  exclusive  power  of  legislation1 
in  their  several  provincial  assemblies,  where  their  right  of 
representation  can  alone  be  preserved,  in  all  cases  of  tax¬ 
ation  and  internal  polity,  subject  only  to  the  negative  of 
their  sovereign,  in  such  manner  as  has  been  heretofore 
used  and  accustomed.  But  from  the  necessity  of  the 
case,  and  a  regard  to  the  mutual  interests  of  both  coun¬ 
tries,  they  cheerfully  consent  to  the  operation  of  such 
acts  of  the  British  Parliament,  as  are  bond  fide  restrain- 
ed  to  the  regulation  of  their  external  commerce,  for  the 
purpose  of  securing  the  commercial  advantages  of  the 
whole  empire  to  the  mother  country,  and  the  commercial 
benefits  of  its  respective  members,  excluding  every  action 


ORIGIN  OF  THE  REVOLUTION. 


25 


of  taxation,  internal  or  external,  for  raising  a  revenue  on 
the  subjects  in  America  without  their  consent.  (5.)  That 
the  respective  Colonies  are  entitled  to  the  common  law 
of  England,  and  more  especially,  the  great  and  inestima¬ 
ble  privilege  of  being  tried  by  their  peers  of  the  vicinage, 
according  to  the  course  of  that  law7,  (meaning  the  trial  by 
jury.)  (6.)  That  the  Colonies  are  entitled  to  the  ben¬ 
efit  of  such  of  the  English  statutes,  as  existed  at  the 
time  of  their  colonization,  and  which  they  have,  by  ex¬ 
perience,  respectively  found  applicable  to  their  several 
local  and  other  circumstances.  (7.)  That  they  are  like¬ 
wise  entitled  to  all  the  immunities  and  privileges  granted 
and  confirmed  to  them  by  royal  charters,  or  secured  to 
them  by  their  several  codes  of  provincial  law.  (8.)  That 
they  have  a  right  peaceably  to  assemble,  consider  of  their 
grievances,  and  petition  the  King  ;  and  that  all  prosecu¬ 
tions,  prohibitory  proclamations,  and  commitments  for 
the  same,  are  illegal.  (9.)  That  the  keeping  of  a  stand¬ 
ing  army  in  these  Colonies  in  times  of  peace,  without 
the  consent  of  the  legislature  of  that  Colony,  in  which 
such  army  is  kept,  is  against  law.  (10.)  That  it  is  in¬ 
dispensably  necessary  to  good  government,  and  rendered 
essential  by  the  English  constitution,  that  the  constituent 
branches  of  the  legislature  be  independent  of  each  other  ; 
that,  therefore,  the  exercise  of  legislative  power  in  several 
Colonies  by  a  Council  appointed  during  pleasure  by  the 
Crown,  is  unconstitutional,  dangerous,  and  destructive  to 
the  freedom  of  American  legislation. 

§  24.  Such  is,  in  substance,  the  Bill  of  Rights  claim¬ 
ed  in  behalf  of  all  the  Colonies  by  the  Continental  Con¬ 
gress,  the  violation  of  which,  constituted  the  main  grounds, 
upon  which  the  American  Revolution  was  founded  ;  and 
the  grievances,  under  which  the  Colonies  labored,  being 
persisted  in  by  the  British  government,  a  resort  to  arms 
became  unavoidable.  The  result  of  the  contest  is  w7ell 
known,  and  has  been  already  stated  ;  and  it  belongs  to 
the  department  of  history,  and  not  of  constitutional  law7, 
to  enumerate  the  interesting  events  of  that  period. 


3 


XIII. 


26 


CONSTITUTION  OF  THE  UNITED  STATES. 


CHAPTER  IV. 

Revolutionary  Government. 

§  25.  But  it  may  be  asked,  and  it  properly  belongs 
to  this  work  to  declare  ;  What  was  the  political  organiza¬ 
tion,  under  which  the  Revolution  was  carried  on  and  ac¬ 
complished  ?  The  Colonies  being,  as  we  have  seen, 
separate  and  independent  of  each  other  in  their  original 
establishment,  and  dowTn  to  the  eve  of  the  Revolution,  it 
became  indispensable,  in  order  to  make  their  resistance 
to  the  British  claims  either  formidable  or  successful,  that 
there  should  be  harmony  and  unity  of  operations  under 
some  common  head.  Massachusetts,  in  1774,  recom¬ 
mended  the  assembling  of  a  Continental  Congress  at 
Philadelphia,  to  be  composed  of  delegates  chosen  in  all 
the  Colonies,  for  the  purpose  of  deliberating  on  the  com¬ 
mon  good,  and  to  provide  a  suitable  scheme  of  future 
operations.  Delegates  were  accordingly  chosen  in  the 
various  Colonies,  some  by  the  legislative  body,  some  by 
the  popular  representative  branch  thereof,  and  some  by 
conventions  of  the  people,  according  to  the  several  means 
and  local  circumstances  of  each  Colony.  This  first  great 
Continental  Congress  assembled  on  the  4th  of  Septem¬ 
ber,  1774,  chose  their  own  officers,  and  adopted  certain 
fundamental  rules  to  regulate  their  proceedings.  The 
most  important  rule  then  adopted  was,  that  each  Colony 
should  have  one  vote  only  in  Congress,  whatever  might  be 
the  number  of  its  delegates  ;  and  this  became  the  establish¬ 
ed  course  throughout  the  whole  Revolution.  They  adopted 
such  other  measures,  as  the  exigency  of  the  occasion  seem¬ 
ed  to  require  ;  and  proposed  another  Congress,  to  be  as¬ 
sembled  for  the  like  purpose,  in  May,  1775,  which  was 
accordingly  held.  The  delegates  of  this  last  Congress 
were  chosen  in  the  same  manner  as  the  preceding  ;  but 
principally  by  conventions  of  the  people  in  the  several 
Colonies.  It  was  the  same  Congress,. which,  after  vot- 


REVOLUTIONARY  GOVERNMENT. 


27 


ing  other  great  measures,  all  leading  to  open  war,  finally, 
in  1776,  made  the  Declaration  of  Independence,  which 
was  unanimously  adopted  by  the  American  people.  Un¬ 
der  the  recommendations  of  the  same  Congress,  suitable 
arrangements  were  made  to  organize  the  State  govern¬ 
ments,  so  as  to  supply  the  deficiencies  in  the  former  es¬ 
tablishments  ;  and  henceforth  the  delegates  to  the  Conti¬ 
nental  Congress  from  time  to  time  assembled,  were  ap¬ 
pointed  by  the  State  legislatures. 

§  26.  The  Continental  Congress,  thus  organized  by  a 
voluntary  association  of  the  States,  and  continued  by  the 
successive  appointments  of  the  State  legislatures,  con¬ 
stituted,  in  fact,  the  National  Government,  and  conducted 
the  national  affairs  until  near  the  close  of  the  Revolution, 
when,  as  we  shall  presently  see,  the  Articles  of  Confeder¬ 
ation  were  adopted  by  all  the  States.  Their  powers  were 
no  where  defined  or  limited.  They  assumed,  among 
others,  the  power  to  declare  war  and  make  peace,  to 
raise  armies  and  equip  navies,  to  form  treaties  and  allian¬ 
ces  with  foreign  nations,  to  contract  public  debts,  and  to 
do  all  other  sovereign  acts  essential  to  the  safety  of  the 
United  Colonies.  Whatever  powers  they  assumed  were 
deemed  legitimate.  These  powers  originated  from  ne¬ 
cessity,  and  were  only  limited  by  events  ;  or,  in  other 
words,  they  were  revolutionary  powers.  In  the  exercise 
of  these  powers,  they  were  supported  by  the  people,  and 
the  exercise  of  them  could  not,  therefore,  be  justly  ques¬ 
tioned  by  any  inferior  authority.  In  an  exact  sense,  then, 
the  powers  of  the  Continental  Congress  might  be  said  to 
be  coextensive  with  the  exigencies  and  necessities  of  the 
public  affairs  ;  and  the  people,  by  their  approbation  and 
acquiescence,  justified  all  their  acts,  having  the  most  en¬ 
tire  reliance  upon  their  patriotism,  their  integrity,  and  their 
political  wisdom. 

§  27.  Rut  it  was  obvious  to  reflecting  minds,  upon  the 
slightest  consideration,  that  the  union  thus  formed,  was 
but  of  a  temporary  nature,  dependent  upon  the  consent 
of  all  the  Colonies,  now  become  States,  and  capable  of 
being  dissolved,  at  any  time,  by  the  secession  of  any  one 
of  them.  It  grew  out  of  the  exigencies  and  dangers  of 


28 


CONSTITUTION  OF  THE  UNITED  STATES. 


the  times  ;  and,  extending  only  to  the  maintenance  of  the 
public  liberties  and  independence  of  all  the  States  during 
the  contest  with  Great  Britain,  it  would  naturally  termi¬ 
nate  with  the  return  of  peace,  and  the  accomplishment  of 
the  ends  of  the  revolutionary  contest.  As  little  could  it 
escape  observation,  how  great  would  be  the  dangers  of 
the  separation  of  the  confederated  States  into  indepen¬ 
dent  communities,  acknowledging  no  common  head,  and 
acting  upon  no  common  system.  Rivalries,  jealousies, 
real  or  imaginary  wrongs,  diversities  of  local  interests 
and  institutions,  would  soon  sever  the  ties  of  a  common 
attachment,  which  bound  them  together,  and  bring  on  a 
state  of  hostile  operations,  dangerous  to  their  peace,  and 
subversive  of  their  permanent  interests. 


CHAPTER  V. 
j History  of  the  Confederation. 

§  28.  One  of  the  first  objects,  therefore,  beyond  that 
of  the  immediate  public  safety,  which  engaged  the  atten¬ 
tion  of  the  Continental  Congress,  was  to  provide  the  means 
of  a  permanent  union  of  all  the  Colonies  under  a  General 
Government.  The  deliberations  on  this  subject  were  co¬ 
eval  with  the  Declaration  of  Independence,  and,  after  va¬ 
rious  debates  and  discussions,  at  different  sessions,  the 
Continental  Congress  finally  agreed,  in  November,  1777, 
upon  a  frame  of  government,  contained  in  certain  Articles 
of  Confederation,  which  were  immediately  sent  to  all  the 
States  for  their  approval  and  adoption.  Various  delays 
and  objections,  however,  on  the  part  of  some  of  the 
States,  took  place  ;  and  as  the  government  was  not  to  go 
into  effect,  until  the  consent  of  all  the  States  should  be 
obtained,  the  Confederation  was  not  finally  adopted  until 
March,  1781,  when  Maryland  (the  last  State)  acceded 
to  it.  The  principal  objections  taken  to  the  Confedera¬ 
tion  were  ;  to  the  mode  prescribed  by  it  for  apportioning 
taxes  among  the  States,  and  raising  the  quota  or  propor- 


HISTORY  OF  THE  CONFEDERATION. 


29 


tions  of  the  public  forces  ;  to  the  power  given  to  keep  up 
a  standing  arm)''  in  time  of  peace  ;  and,  above  all,  to  the 
omission  of  the  reservation  of  all  the  public  lands,  owned 
by  the  Crown,  within  the  boundaries  of  the  United  States, 
to  the  National  Government,  for  national  purposes.  This 
latter  subject  was  one  of  a  perpetually  recurring  and  in¬ 
creasing  irritation  ;  and  the  Confederation  would  never 
have  been  acceded  to,  if  Virginia  and  New  York  had  not 
at  last  consented  to  make  liberal  cessions  of  the  territory 
within  their  respective  boundaries  for  national  purposes. 

§29.  The  Articles  of  Confederation  had  scarcely  been 
adopted,  before  the  defects  of  the  plan,  as  a  frame  of 
national  government,  began  to  manifest  themselves.  The 
instrument,  indeed,  was  framed  under  circumstances  very 
little  favorable  to  a  just  survey  of  the  subject  in  all  its 
proper  bearings.  The  States,  while  colonies,  had  been 
under  the  controlling  authority  of  a  foreign  sovereignty, 
whose  restrictive  legislation  had  been  severely  felt,  and 
whose  prerogatives,  real  or  assumed,  had  been  a  source 
of  incessant  jealousy  and  alarm.  Of  course,  they  had 
nourished  a  spirit  of  resistance  to  all  external  authority  ; 
and  having  had  no  experience  of  the  inconveniences  of 
the  want  of  some  general  government  to  superintend 
their  common  affairs  and  interests,  they  reluctantly  yield¬ 
ed  any  thing,  and  deemed  the  least  practicable  delegation 
of  power  quite  sufficient  for  national  purposes.  Notwith¬ 
standing  the  Confederation  purported  on  its  face  to  con¬ 
tain  articles  of  perpetual  union,  it  was  easy  to  see,  that 
its  principal  powers  respected  the  operations  of  war,  and 
were  dormant  in  times  of  peace  ;  and  that  even  these 
were  shadowy  and  unsubstantial,  since  they  were  stripped 
of  all  coercive  authority.  It  was  remarked,  by  an  eminent 
statesman,  that  by  this  political  compact  the  Continental 
Congress  have  exclusive  power  for  the  following  purposes, 
without  being  able  to  execute  one  of  them  : — They  may 
make  and  conclude  treaties  ;  but  can  only  recommend 
the  observance  of  them.  They  may  appoint  ambassa¬ 
dors  ;  but  they  cannot  defray  even  the  expenses  of  their 
tables.  They  may  borrow  money  in  their  own  name,  on 
the  faith  of  the  Union  ;  but  thev  cannot  pay  a  dollar. 

3* 


30 


CONSTITUTION  OF  THE  UNITED  STATES. 


They  may  coin  money  ;  but  they  cannot  import  an  ounce 
of  bullion.  They  may  make  war,  and  determine  what 
number  of  troops  are  necessary  ;  but  they  cannot  raise  a 
single  soldier.  In  short,  they  may  declare  every  thing, 
but  they  can  do  nothing.  And,  strong  as  this  description 
may  seem,  it  was  literally  true  ;  for  Congress  had  little 
more  than  the  power  of  recommending  their  measures  to 
the  good  will  of  the  States. 

§  30.  The  leading  defects  of  the  Confederation  were 
the  following  :  In  the  first  place,  there  was  an  utter  want 
of  all  coercive  authority  in  the  Continental  Congress,  to 
carry  into  effect  any  of  their  constitutional  measures. 
They  could  not  legislate  directly  upon  persons  ;  and, 
therefore,  their  measures  were  to  be  carried  into  effect 
by  the  States  ;  and  of  course,  whether  they  were  execu¬ 
ted  or  not,  depended  upon  the  sole  pleasure  of  the  legis¬ 
latures  of  the  latter.  And,  in  point  of  fact,  many  of  the 
measures  of  the  Continental  Congress  were  silently  disre¬ 
garded  ;  many  were  slowly  and  reluctantly  obeyed  ;  and 
some  of  them  were  openly  and  boldly  refused  to  be  exe¬ 
cuted. 

§  31.  In  the  next  place,  there  was  no  power  in  the 
Continental  Congress  to  punish  individuals  for  any  breach¬ 
es  of  their  enactments.  Their  laws,  if  laws  they  might 
be  called,  were  without  any  penal  sanction  ;  the  Conti¬ 
nental  Congress  could  not  impose  a  fine,  or  imprisonment, 
or  any  other  punishment,  upon  refractory  officers,  or  even 
suspend  them  from  office.  Under  such  circumstances, 
it  might  naturally  be  supposed,  that  men  followed  their 
own  interests,  rather  than  their  duties.  They  obeyed, 
when  it  was  convenient,  and  cared  little  for  persuasions, 
and  less  for  conscientious  obligations.  The  wonder  is,  not 
that  such  a  scheme  of  government  should  fail ;  but,  that  it 
should  have  been  capable  even  of  a  momentary  existence. 

§  32.  In  the  next  place,  the  Continental  Congress  had 
no  power  to  lay  taxes,  or  to  collect  revenue,  for  the  pub¬ 
lic  service.  All  that  they  could  do  was,  to  ascertain  the 
sums  necessary  to  be  raised  for  the  public  service,  and  to 
apportion  its  quota  or  proportion  upon  each  State.  The 
power  to  lay  and  collect  the  taxes  was  expressly  and  ex- 


HISTORY  OF  THE  CONFEDERATION. 


31 


clusively  reserved  to  the  States.  The  consequence  was, 
that  great  delays, took  place  in  collecting  the  taxes  ;  and 
the  evils  from  this  source  were  of  incalculable  extent, 
even  during  the  Revolutionary  War.  The  Continental 
Congress  were  often  wholly  without  funds  to  meet  the 
exigencies  of  the  public  service  ;  and  if  it  had  not  been 
for  their  good  fortune,  in  obtaining  money  by  some  loans 
in  foreign  countries,  it  is  far  from  being  certain,  that  this 
dilatory  scheme  of  taxation  would  not  have  been  fatal  to 
the  cause  of  the  Revolution.  After  the  peace  of  1783, 
the  States  relapsed  into  utter  indifference  on  this  subject. 
The  requisitions  of  the  Continental  Congress  for  funds, 
even  for  the  purpose  of  enabling  them  to  pay  the  inter¬ 
est  of  the  public  debt,  were  openly  disregarded  ;  and, 
notwithstanding  the  most  affecting  appeals,  made  from 
time  to  time  by  the  Congress,  to  the  patriotism,  the  sense  of 
duty,  and  the  justice  of  the  States,  the  latter  refused  to 
raise  the  necessary  supplies.  The  consequence  was, 
that  the  national  treasury  was  empty  ;  the  credit  of  the 
Confederacy  was  sunk  to  a  low  ebb  ;  the  public  bur¬ 
dens  were  increasing  ;  and  the  public  faith  was  prostrated 
and  openly  violated. 

§  33.  In  the  next  place,  the  Continental  Congress  had 
no  power  to  regulate  commerce,  either  with  foreign  na¬ 
tions,  or  among  the  several  States  composing  the  Union. 
Commerce,  both  foreign  and  domestic,  was  left  exclu¬ 
sively  to  the  management  of  each  particular  State,  accord¬ 
ing  to  its  views  of  its  own  interests,  or  its  local  prejudices. 
The  consequence  was,  that  the  most  opposite  regulations 
existed  in  the  different  States  ;  and,  in  many  cases,  and 
especially  between  neighboring  States,  there  was  a  per¬ 
petual  course  of  retaliatory  legislation,  from  their  jealous¬ 
ies  and  rivalries  in  commerce,  in  agriculture,  or  in  man¬ 
ufactures.  Foreign  nations  did  not  fail  to  avail  them¬ 
selves  of  all  the  advantages  accruing  to  themselves  from 
this  suicidal  policy,  tending  to  the  common  ruin.  And 
as  the  evils  grew  more  pressing,  the  resentments  of  the 
States  against  each  other,  and  the  consciousness,  that 
their  local  interests  were  placed  in  opposition  to  each 
other,  were  daily  increasing  the  mass  of  disaffection,  until 


32  CONSTITUTION  OF  THE  UNITED  STATES. 

it  became  obvious,  that  the  dangers  of  immediate  warfare 
between  some  of  the  States  were  imminent  ;  and  thus, 
the  peace  and  safety  of  the  Union  were  made  dependent 
upon  measures  of  the  States,  over  which  the  General 
Government  had  not  the  slightest  control. 

§  34.  But  the  evil  did  not  rest  here.  Our  foreign 
commerce  was  not  only  crippled,  but  almost  destroyed, 
by  this  want  of  uniform  laws  to  regulate  it.  Foreign  na¬ 
tions  imposed  upon  our  navigation  and  trade  just  such 
restrictions,  as  they  deemed  best  to  their  own  interest  and 
policy.  All  of  them  had  a  common  interest  to  stint  our 
trade,  and  enlarge  their  own  ;  and  all  of  them  were  well 
satisfied,  that  they  might,  in  the  distracted  state  of  our 
legislation,  pass  whatever  acts  they  pleased  on  this  sub¬ 
ject,  with  impunity.  They  did  not  fail  to  avail  themselves, 
to  the  utmost,  of  their  advantages.  They  pursued  a  sys¬ 
tem  of  the  most  rigorous  exclusion  of  our  shipping  from 
all  the  benefits  of  their  own  commerce  ;  and  endeavored 
to  secure,  with  a  bold  and  unhesitating  confidence,  a  mo¬ 
nopoly  of  ours.  The  effects  of  this  system  of  operations, 
combined  with  our  political  weakness,  were  soon  visible. 
Our  navigation  was  ruined  ;  our  mechanics  were  in  a 
state  of  inextricable  poverty  ;  our  agriculture  was  with¬ 
ered  ;  and  the  little  money  still  found  in  the  country  was 
gradually  finding  its  way  abroad,  to  supply  our  immediate 
wants.  In  the  rear  of  all  this,  there  was  a  heavy  public 
debt,  which  there  was  no  means  to  pay  ;  and  a  state  of 
alarming  embarrassment,  in  that  most  difficult  and  delicate 
of  all  relations,  the  relation  of  private  debtors  and  cred¬ 
itors,  threatened  daily  an  overthrow  even  of  the  ordinary 
administration  of  justice.  Severe,  as  were  the  calamities 
of  the  war,  the  pressure  of  them  was  far  less  mischievous, 
than  this  slow  but  progressive  destruction  of  all  our  re¬ 
sources,  all  our  industry,  and  all  our  credit. 

§  35.  There  were  many  other  defects  in  the  Con¬ 
federation,  of  a  subordinate  character  and  importance. 
But  these  were  sufficient  to  establish  its  utter  unfitness,  as 
a  frame  of  government,  for  a  free,  enterprising,  and  in¬ 
dustrious  people.  Great,  however,  and  manifold  as  the 
evils  were,  and,  indeed,  so  glaring  and  so  universal,  it 


ORIGIN  OF  THE  CONSTITUTION. 


S3 


was  yet  extremely  difficult  to  induce  the  States  to  con¬ 
cur  in  adopting  any  adequate  remedies  to  redress  them. 
For  several  years,  efforts  were  made  by  some  of  our 
wisest  and  best  patriots  to  procure  an  enlargement  of 
the  powers  of  the  Continental  Congress  ;  but,  from  the 
predominance  of  State  jealousies,  and  the  supposed  in¬ 
compatibility  of  State  interests  with  each  other,  they  all 
failed.  At  length,  however,  it  became  apparent,  that 
the  Confederation,  being  left  without  resources  and  with¬ 
out  powers,  must  soon  expire  of  its  own  debility.  It 
had  not  only  lost  all  vigor,  but  it  had  ceased  even  to  be 
respected.  It  had  approached  the  last  stages  of  its  de¬ 
cline  ;  and  the  only  question,  which  remained,  was, 
whether  it  should  be  left  to  a  silent  dissolution,  or  an 
attempt  should  be  made  to  form  a  more  efficient  govern¬ 
ment,  before  the  great  interests  of  the  Union  were  buried 
beneath  its  ruins. 

¥ - jfl 

CHAPTER  VI. 

Origin  of  the  Constitution . 

§  36.  In  1785,  commissioners  were  appointed  by 
the  legislatures  of  Maryland  and  Virginia,  to  form  a 
compact,  relative  to  the  navigation  of  the  rivers  Potomac 
and  Roanoke,  and  the  Chesapeake  Ray.  The  com¬ 
missioners  met,  accordingly,  at  Alexandria,  in  Virginia  ; 
but,  feeling  the  want  of  adequate  powers,  they  recommend¬ 
ed  proceedings  of  a  more  enlarged  nature.  The  legis¬ 
lature  of  Virginia  accordingly,  in  January,  1786,  pro¬ 
posed  a  convention  of  commissioners  from  all  the  States, 
for  the  purpose  of  taking  into  consideration  the  state  of 
trade,  and  the  propriety  of  a  uniform  system  of  com¬ 
mercial  relations,  for  their  permanent  harmony  and  com¬ 
mon  interest.  Pursuant  to  this  proposal,  commissioners 
were  appointed  by  five  States,  who  met  at  Annapolis, 
in  September,  1786.  They  framed  a  Report,  to  be 
laid  before  the  Continental  Congress,  advising  the  latter 


34  CONSTITUTION  OF  THE  UNITED  STATES. 

to  call  a  General  Convention,  of  commissioners  from  all 
the  States,  to  meet  in  Philadelphia,  in  May,  1787,  for  a 
more  effectual  revision  of  the  Articles  of  Confederation. 

§  37.  Congress  adopted  the  recommendation  of  the 
Report,  and  in  February,  17S7,  passed  a  resolution  for 
assembling  a  Convention  accordingly.  All  the  States, 
except  Rhode  Island,  appointed  delegates  ;  and  they 
met  at  Philadelphia.  After  very  protracted  deliberations, 
and  great  diversities  of  opinion,  they  finally,  on  the  17th 
of  September,  1787,  framed  the  present  Constitution  of 
the  United  States,  and  recommended  it  to  be  laid  by  the 
Congress  before  the  several  States,  to  be  by  them  con¬ 
sidered  and  ratified,  in  conventions  of  the  representa¬ 
tives  of  the  people,  to  be  called  for  that  purpose.  The 
Continental  Congress  accordingly  took  measures  for  this 
purpose.  Conventions  were  accordingly  called  in  all 
the  States,  except  Rhode  Island,  and,  after  many  warm 
discussions,  the  Constitution  was  ratified  by  all  of  them, 
except  North  Carolina  and  Rhode  Island. 

§  38.  The  assent  of  nine  States  only  being  required 
to  put  the  Constitution  into  operation,  measures  were  ta¬ 
ken  for  this  purpose,  by  Congress,  in  September,  1788,. 
as  soon  as  the  requisite  ratifications  were  ascertained. 
Electors  of  President  and  Vice  President  were  chosen, 
who  subsequently  assembled  and  gave  their  votes  ;  and 
the  necessary  elections  of  Senators  and  Representatives 
being  made,  the  first  Congress  under  the  Constitution  as¬ 
sembled  at  New  York,  (the  then  seat  of  government,)  on 
Wednesday,  the  4th  day  of  March,  1789,  for  com¬ 
mencing  proceedings  under  the  Constitution.  A  quorum, 
however,  of  both  Houses,  for  the  transaction  of  business 
generally,  did  not  assemble  until  the  6th  of  April  follow¬ 
ing,  when,  the  votes  of  the  Electors  being  counted,  it 
was  found,  that  George  Washington  was  unanimously 
elected  President,  and  John  Adams  was  elected  Vice 
President.  On  the  30th  of  April,  President  Washington 
was  sworn  into  office  ;  and  the  government  immediately 
went  into  full  operation.  North  Carolina  afterwards, 
in  a  new  convention,  held  in  November,  17S9,  adopted 
the  Constitution  and  Rhode  Island,  also,  by.  a  con- 


HISTORY  OF  THE  CONSTITUTION. 


35 


vention,  held  in  May,  1790.  So  that  all  the  thirteen 
States,  by  the  authority  of  the  people  thereof,  finally  be¬ 
came  parties  under  the  new  government. 

^  39.  Thus  was  achieved  another,  and  still  more 
glorious,  triumph,  in  the  cause  of  liberty,  even  than  that, 
by  which  we  were  separated  from  the  parent  country. 
It  was  not  achieved,  however,  without  great  difficulties 
and  sacrifices  of  opinion.  It  required  all  the  wisdom, 
the  patriotism,  and  the  genius  of  our  best  statesmen,  to 
overcome  the  objections,  which,  from  various  causes, 
were  arrayed  against  it.  The  history  of  those  times  is 
full  of  melancholy  instruction,  at  once  to  admonish  us  of 
the  dangers,  through  which  we  have  passed,  and  of  the 
necessity  of  incessant  vigilance,  to  guard  and  preserve, 
what  has  been  thus  hardly  earned.  The  Constitution 
was  adopted  unanimously  in  New  Jersey,  Delaware,  and 
Georgia.  It  was  supported  by  large  majorities  in  Con¬ 
necticut,  Pennsylvania,  Maryland,  and  South  Carolina. 
In  the  remaining  States,  it  was  carried  by  small  majori¬ 
ties  ;  and  especially,  in  Massachusetts,  New  York,  and 
Virginia,  by  little  more  than  a  mere  preponderating  vote. 
What  a  humiliating  lesson  is  this,  after  all  our  sufferings 
and  sacrifices,  and  after  our  long  and  sad  experience  of 
the  evils  of  disunited  councils,  and  of  the  pernicious 
influence  of  State  jealousies,  and  local  interests !  It 
teaches  us,  how  slowly  even  adversity  brings  the  mind  to 
a  due  sense  of  what  political  wisdom  requires.  It  teach¬ 
es  us,  how  liberty  itself  may  be  lost,  when  men  are  found 
ready  to  hazard  its  permanent  blessings,  rather  than  sub¬ 
mit  to  the  wdiolesome  restraints,  which  its  permanent 
security  demands. 

§  40.  To  those  great  men,  who  thus  framed  the 
Constitution,  and  secured  the  adoption  of  it,  we  owe  a 
debt  of  gratitude,  which  can  scarcely  be  repaid.  It  was 
not  then,  as  it  is  now,  looked  upon,  from  the  blessings, 
which,  under  the  guidance  of  Divine  Providence,  it  has 
bestowed,  with  general  favor  and  affection.  On  the 
contrary,  many  of  those  pure  and  disinterested  patriots, 
who  stood  forth,  the  firm  advocates  of  its  principles,  did 
so  at  the  expense  of  their  existing  popularity.  They 


36  CONSTITUTION  OF  THE  UNITED  STATES. 

felt,  that  they  had  a  higher  duty  to  perform,  than  to  flat¬ 
ter  the  prejudices  of  the  people,  or  to  subserve  selfish,  or 
sectional,  or  local  interests.  Many  of  them  went  to  their 
graves,  without  the  soothing  consolation,  that  their  ser¬ 
vices  and  their  sacrifices  were  duly  appreciated.  They 
scorned  every  attempt  to  rise  to  power  and  influence  by 
the  common  arts  of  demagogues  ;  and  they  were  content 
to  trust  their  characters,  and  their  conduct,  to  the  de¬ 
liberate  judgement  of  posterity. 

§41.  If,  upon  a  close  survey  of  their  labors,  as  de¬ 
veloped  in  the  actual  structure  of  the  Constitution,  we 
shall  have  reason  to  admire  their  wisdom  and  forecast,  to 
observe  their  profound  love  of  liberty,  and  to  trace  their 
deep  sense  of  the  value  of  political  responsibility,  and  their 
anxiety,  above  all  things,  to  give  perpetuity,  as  well  as 
energy,  to  the  republican  institutions  of  their  country ; 
then,  indeed,  will  our  gratitude  kindle  into  a  holier  rev¬ 
erence,  and  their  memories  will  be  cherished  among  those 
of  the  noblest  benefactors  of  mankind. 


CHAPTER  VII. 

Exposition  of  the  Constitution. —  The  Preamble. 

§42.  Having  given  this  general  sketch  of  the  origin 
of  the  Colonies,  of  the  rise  and  fall  of  the  Confederation, 
and  of  the  formation  and  adoption  of  the  Constitution  of 
the  United  States,  we  are  now  prepared  to  enter  upon  an 
examination  of  the  actual  structure  and  organization  of 
that  Constitution,  and  the  powers  belonging  to  it.  We 
shall  treat  it,  not  as  a  mere  compact,  or  league,  or  confed¬ 
eracy,  existing  at  the  mere  will  of  any  one  or  more  of  the 
States,  during  their  good  pleasure  ;  but,  (as  it  purports 
on  its  face  to  be,)  as  a  Constitution  of  Government,  framed 
and  adopted  by  the  people  of  the  United  States,  and 
obligatory  upon  all  the  States,  until  it  is  altered,  amended, 
or  abolished  by  the  people,  in  the  manner  pointed  out  in  the 
instrument  itself.  It  is  to  be  interpreted,  as  all  other  solemn 


EXPOSITION  OF  PREAMBLE. 


37 


instruments  are,  by  endeavoring  to  ascertain  the  true  sense 
and  meaning  of  all  the  terms  ;  and  we  are  neither  to  nar¬ 
row  them,  nor  to  enlarge  them,  by  straining  them  from  their 
just  and  natural  import,  for  the  purpose  of  adding  to,  or 
diminishing  its  powers,  or  bending  them  to  any  favorite 
theory  or  dogma  of  party.  It  is  the  language  of  the  peo¬ 
ple,  to  be  judged  of  according  to  common  sense,  and  not 
by  mere  theoretical  reasoning.  It  is  not  an  instrument  for 
the  mere  private  interpretation  of  any  particular  men.  The 
people  have  established  it  and  spoken  their  will ;  and  their 
will,  thus  promulgated,  is  to  be  obeyed  as  the  supreme  law. 
Every  department  of  the  Government  must,  of  course,  in 
the  first  instance,  in  the  exercise  of  its  own  powers  and 
duties,  necessarily  construe  the  instrument.  But,  if  the 
case  admits  of  judicial  cognizance,  every  citizen  has  a 
right  to  contest  the  validity  of  that  construction  before  the 
proper  judicial  tribunal  ;  and  to  bring  it  to  the  test  of  the 
Constitution.  And,  if  the  case  is  not  capable  of  judicial 
redress,  still  the  people  may,  through  the  acknowledged 
means  of  new  elections,  or  proposed  amendments,  check 
any  usurpation  of  authority,  whether  wanton,  or  uninten¬ 
tional,  and  thus  relieve  themselves  from  any  grievances 
of  a  political  nature. 

§  43.  For  a  right  understanding  of  the  Constitution  of 
the  United  States,  it  will  be  found  most  convenient  to 
examine  the  provisions,  generally,  in  the  order,  in  which 
they  are  stated  in  the  instrument  itself ;  and  thus,  the  dif¬ 
ferent  parts  may  be  made  mutually  to  illustrate  each  other. 
This  order  will,  accordingly,  be  adopted  in  the  ensuing 
commentaries. 

§  44.  We  shall  begin  then,  with  the  Preamble,  which 
is  in  the  following  words  : — 

“We,  the  people  of  the  United^  States,  in  order  to  form 
a  more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defence,  promote 
the  general  welfare,  and  secure  the  blessings  of  liberty 
to  ourselves  and  our  posterity,  do  ordain  and  establish 
this  Constitution  for  the  United  States  of  America.” 

§  45.  This  Preamble  is  very  important,  not  only  as 
explanatory  of  the  motives  and  objects  of  framing  the 

4  xm. 


38 


CONSTITUTION  OF  THE  UNITED  STATES. 


Constitution  ;  but,  as  affording  the  best  key  to  the  true 
interpretation  thereof.  For  it  may  well  be  presumed, 
that  the  language  used  will  be  in  conformity  to  the  motives, 
which  govern  the  parties,  and  the  objects  to  be  attained 
by  the  Instrument.  Every  provision  in  the  instrument 
may  therefore  fairly  be  presumed  to  have  reference  to 
one  or  more  of  these  objects.  And  consequently,  il 
any  provision  is  susceptible  of  two  interpretations,  that 
ought  to  be  adopted,  and  adhered  to,  which  best  harmo¬ 
nizes  with  the  avowed  intentions  and  objects  of  the  au¬ 
thors,  as  gathered  from  their  declarations  in  the  instrument 
itself. 

§  46.  The  first  object  is,  u  to  form  a  more  perfect 
union.  ”  From  what  has  been  already  stated,  respecting 
the  defects  of  the  Confederation,  it  is  obvious,  that  a 
further  continuance  of  the  Union  was  impracticable,  un¬ 
less  a  new  government  was  formed,  possessing  more 
powers  and  more  energy.  That  the  Union  of  the  States 
is  in  the  highest  degree  desirable,  nay,  that  it  is  almost 
indispensable  to  the  political  existence  of  the  States,  is  a 
proposition,  which  admits  of  the  most  complete  moral 
demonstration,  so  far  as  human  experience  and  general 
reasoning  can  establish  it.  If  the  States  were  wholly 
separated  from  each  other,  the  very  inequality  of  their 
population,  territory,  resources,  and  means  of  protecting 
their  local  interests,  would  soon  subject  them  to  injuri¬ 
ous  rivalries,  jealousies,  and  retaliatory  measures.  The  * 
weak  would  be  wholly  unable  to  contend  successfully 
against  the  strong,  and  would  be  compelled  to  submit  to 
the  terms,  which  the  policy  of  their  more  powerful  neigh¬ 
bors  should  impose  upon  them.  What  could  Rhode 
Island,  or  New  Jersey,  or  Delaware,  accomplish  against 
the  will,  or  the  resentments,  of  the  formidable  States, 
which  surround  them  ?  But,  in  a  more  general  view, 
the  remark  of  the  Abbe  Mably  may  be  appealed  to,  as 
containing  the  result  of  all  human  experience.  4 c Neighbor¬ 
ing  states  (says  he)  are  naturally  enemies  of  each  other, 
unless  their  common  weakness  forces  them  to  league  in  a 
confederative  republic,  and  their  Constitution  prevents  the 
differences,  that  neighborhood  occasions,  extinguishing 


EXPOSITION  OF  PREAMBLE. 


39 


that  secret  jealousy,  which  disposes  all  states  to  aggran¬ 
dize  themselves,  at  the  expense  of  their  neighbors.” 

§  47.  On  the  other  hand,  if  the  States  should  separate 
into  distinct  confederacies,  there  could  scarcely  be  less 
than  three,  and  most  probably,  there  would  be  four  ;  an 
Eastern,  a  Middle,  a  Southern,  and  a  Western  Confed¬ 
eracy.  The  lines  of  division  would  be  traced  out  by 
geographical  boundaries  between  the  slave-holding  and 
the  non-slave-holding  States,  a  division,  in  itself,  fraught 
with  constant  causes  of  irritation  and  alarm.  There 
would  also  be  marked  distinctions  between  the  commer¬ 
cial,  the  manufacturing,  and  the  agricultural  States,  which 
would  perpetually  give  rise  to  real  or  supposed  grievan¬ 
ces  and  inequalities.  But  the  most  important  considera¬ 
tion  is,  that,  in  order  to  maintain  such  confederacies,  it 
would  be  necessary  to  clothe  the  government  of  each  of 
them  with  summary  and  extensive  powers,  almost  incom¬ 
patible  with  liberty,  and  to  keep  up  large  and  expensive 
establishments,  as  well  for  defence  as  for  offence,  in  order 
to  guard  against  the  sudden  inroads,  or  deliberate  aggres¬ 
sions  of  their  neighbors  and  rivals.  The  evils  of  faction, 
the  tendencies  to  corrupt  influence,  the  pressure  of  taxa¬ 
tion,  the  necessary  delegation  of  arbitrary  powers,  and  the 
fluctuations  of  legislation,  would  thus  be  immeasurably 
increased.  Foreign  nations,  too,  would  not  fail  to  avail 
themselves,  in  pursuit  of  their  own  interests,  of  every 
.opportunity  to  foster  our  intestine  divisions,  since  they 
might  thus  more  easily  command  our  trade,  or  monopo¬ 
lize  our  products,  or  crush  our  manufactures,  or  keep  us  in 
a  state  of  dependence  upon  their  good  will  for  our  security, 

§  48.  The  Union  of  the  States,  cc  the  more  perfect 
union”  of  them,  under  a  National  Government,  is,  then, 
and  for  ever  must  be,  invaluable  to  the  whole  country,  in 
respect  to  foreign  and  domestic  concerns.  It  will  dimin¬ 
ish  the  causes  of  war,  that  scourge  of  the  human  race  ;  it 
will  enable  the  National  Government  to  protect  and  secure 
the  rights  of  the  whole  people  ;  it  will  diminish  public  ex¬ 
penditures  ;  it  will  insure  respect  abroad,  and  confidence 
at  home  ;  and  it  will  unite  in  one  common  bond  the  in¬ 
terests  of  agriculture,  of  commerce,  and  of  manufactures. 


40  CONSTITUTION  OF  THE  UNITED  STATES. 

§40.  The  next  object  is,  u  to  establish  justice.” 
This,  indeed,  is  the  first  object  of  all  good  and  rational 
forms  of  government.  Without  justice  being  fully,  free¬ 
ly,  and  impartially  administered,  neither  our  persons, 
nor  our  rights,  nor  our  property,  can  be  protected.  Call 
the  form  of  government  whatever  you  may,  if  justice 
cannot  be  equally  obtained  by  all  the  citizens,  high  and 
low,  rich  and  poor,  it  is  a  mere  despotism.  Of  what 
use  is  it  to  have  wise  laws  to  protect  our  rights  or  prop¬ 
erty,  if  there  are  no  adequate  means  of  enforcing  them  ? 
Of  what  use  are  constitutional  provisions  or  prohibitions, 
if  they  may  be  violated  with  impunity  ?  If  there  are  no 
tribunals  of  justice  established  to  administer  the  laws  with 
firmness  and  independence,  and  placed  above  the  reach 
of  the  influence  of  rulers,  or  the  denunciations  of  mobs, 
what  security  can  any  citizen  have  for  his  personal  safety 
or  for  his  public  or  private  rights  ?  It  may,  therefore, 
be  laid  down  as  a  fundamental  maxim  of  all  govern¬ 
ments,  that  justice  ought  to  be  administered  freely  and 
fully  between  private  persons  ;  and  it  is  rarely  departed 
from,  even  in  the  most  absolute  despotisms,  unless  under 
circumstances  of  extraordinary  policy  or  excitement. 
Doubtless,  the  attainment  of  justice  is  the  foundation,  on 
which  all  our  State  governments  rest  ;  and,  therefore, 
the  inquiry  may  naturally  present  itself,  in  what  respects 
the  formation  of  a  National  Government  would  better  tend 
to  establish  justice. 

§  50.  The  answer  may  be  given  in  a  few  words.  In 
the  administration  of  justice,  citizens  of  the  particular 
State  are  not  alone  interested.  Foreign  nations,  and 
their  subjects,  as  well  as  citizens  of  other  States,  may  be 
deeply  interested.,  They  may  have  rights  to  be  protect¬ 
ed  ;  wrongs  to  be  redressed  ;  contracts  to  be  enforced  ; 
and  equities  to  be  acknowledged.  It  may  be  presumed, 
that  the  States  will  provide  adequate  means  to  redress 
the  grievances,  and  secure  the  rights  of  their  own  citizens. 
But,  it  is  far  from  being  certain,  that  they  will  at  all  times, 
or  even  ordinarily,  take  the  like  measures  to  redress  the 
grievances,  and  secure  the  rights  of  foreigners,  and  citi¬ 
zens  of  other  States.  On  the  contrary,  one  of  the  rarest 


EXPOSITION  OF  PREAMBLE. 


41 


occurrences  in  human  legislation  is,  to  find  foreigners, 
and  citizens  of  other  States,  put  upon  a  footing  of  equali¬ 
ty  with  the  citizens  of  the  legislating  State.  The  natural 
tendency  of  every  government  is,  to  favor  its  own  citi¬ 
zens  ;  and  unjust  preferences,  not  only  in  the  administra¬ 
tion,  but  in  the  very  structure  of  the  laws,  have  often 
arisen,  and  may  reasonably  be  presumed  hereafter  to 
arise.  It  could  not  be  expected,  that  all  the  American 
States,  left  at  full  liberty,  would  legislate  upon  the  sub¬ 
ject  of  rights  and  remedies,  preferences  and  contracts, 
exactly  in  the  same  manner.  And  every  diversity  would 
soon  bring  on  some  retaliatory  legislation  elsewhere. 
Popular  prejudices  and  passions,  real  or  supposed  injuries, 
or  inequalities,  the  common  attachment  to  persons,  whom 
we  know,  as  well  as  to  domestic  pursuits  and  interests,  and 
the  common  indifference  to  strangers  and  remote  objects, 
are  often  found  to  interfere  with  a  liberal  policy  in  legis¬ 
lation.  Now,  precisely,  what  this  reasoning  would  lead 
us  to  presume  as  probable,  actually  occurred,  not  only 
while  we  were  colonies  of  Great  Britain,  but  also  under 
the  Confederation.  The  legislation  of  several  of  the 
States  gave  a  most  unjust  preference  to  the  debts  of 
their  own  citizens  in  cases  of  insolvency,  over  those  due 
to  the  citizens  of  other  States  and  to  foreigners. 

§  51 .  But  there  were  other  evils  of  a  much  greater  mag¬ 
nitude,  which  required  a  National  Government,  clothed 
with  powers  adequate  to  the  more  effectual  establishment 
of  justice.  There  were  territorial  disputes  between  the 
States,  as  to  their  respective  boundaries  and  jurisdiction, 
constantly  exciting  mutual  irritations,  and  introducing  bor¬ 
der  warfare.  Laws  were  perpetually  made  in  the  States, 
interfering  with  the  sacred  rights  of  private  contracts,  sus¬ 
pending  the  remedies  in  regard  to  them,  or  discharging 
them  by  a  payment  or  tender  in  worthless  paper  money, 
or  in  some  depreciated  or  valueless  property.  The  debts 
due  to  foreigners  were,  notoriously,  refused  payment ; 
and  many  obstructions  were  put  in  the  way  of  the  recov¬ 
ery  of  them.  The  public  debt  was  left  wholly  unpro¬ 
vided  for  ;  and  a  disregard  of  the  public  faith  had  become 
so  common  a  reproach  among  us,  that  it  almost  ceased 

4*  . 


42 


CONSTITUTION  OF  THE  UNITED  STATE'S. 


to  attract  observation.  Indeed,  in  some  of  the  States,, 
the  operation  of  private  and  public  distresses  was  felt  so 
severely,  that  the  administration,  even  of  domestic  jus¬ 
tice,  was  constantly  interfered  with  ;  the  necessity  of 
suspending  it  was  boldly  vindicated  ;  and  in  some  cases, 
even  a  resort  to  arms  was  encouraged  to  prevent  it. 
Nothing  but  a  National  Government,  capable,  from  its 
powers  and  resources,  of  overawing  the  spirit  of  rebel¬ 
lion,  and  of  aiding  in  the  establishment  of  a  sound  curren¬ 
cy,  just  laws,  and  solid  public  credit,  could  remedy  the 
existing  evils. 

§52.  The  next  object  is,  ctto  insure  domestic  tran¬ 
quillity.”  From  what  has  been  already  stated,  it  is  ap¬ 
parent,  how  essential  an  efficient  National  Government 
is,  to  the  security  of  the  States  against  foreign  influence, 
domestic  dissensions,  commercial  rivalries,  legislative  re¬ 
taliations,  territorial  disputes,  and  the  perpetual  irritations 
of  a  border  warfare,  for  privileges,  or  exemptions,  or 
smuggling.  In  addition  to  these  considerations,  it  is  well 
known,  that  factions  are  far  more  violent  in  small  than 
in  large  communities  ;  and  that  they  are  even  more  dan¬ 
gerous  and  enfeebling  ;  because  success  and  defeat  more 
rapidly  succeed  each  other  in  the  changes  of  their  local 
affairs,  and  foreign  influences  can  be  more  easily  brought 
into  play  to  corrupt  and  divide  them.  A  National  Gov¬ 
ernment  naturally  tends  to  disarm  the  violence  of  domes¬ 
tic  factions  in  small  states,  by  its  superior  influence. 
It  diminishes  the  exciting  causes,  and  it  leaves  fewer 
chances  of  success  to  their  operations. 

§  53.  The  next  object  is,  “  to  provide  for  the  common 
defence.”  One  of  the  surest  means  of  preserving  peace 
y  is  always  to  be  prepared  for  war.  One  of  the  safest  re¬ 
liances  against  foreign  aggression  is  the  possession  of 
numbers  and  resources,  capable  of  repelling  any  attack. 
A  nation  of  narrow  territory,  and  small  population,  and 
moderate  resources,  can  never  be  formidable  ;  and  must 
content  itself  with  being  feeble  and  unenviable  in  its  con¬ 
dition.  On  the  contrary,  a  nation  or  a  confederacy,  which 
possesses  large  territory,  abundant  resources,  and  a  dense 
population,  can  always  command  respect,  and  is  almost 


EXPOSITION  OF  PREAMBLE. 


43 


incapable,  if  true  to  itself,  of  being  conquered.  In  pro¬ 
portion  to  the  size  and  population  of  a  nation,  its  general 
resources  will  be  ;  and  the  same  expenditures,  which 
may  be  easily  borne  by  a  numerous  and  industrious  peo¬ 
ple,  would  soon  exhaust  the  means  of  a  scanty  popula¬ 
tion.  What,  for  instance,  would  be  more  burdensome 
to  a  State  like  New  Jersey,  than  the  necessity  of  keep¬ 
ing  up  a  large  body  of  troops,  to  protect  itself  against  the 
encroachments  of  the  neighboring  States  of  Pennsylvania 
and  New  York  ?  The  same  military  force,  which  would 
hardly  be  felt  in  either  of  the  latter  States,  would  press 
heavily  upon  the  resources  of  a  small  State,  as  a  perma¬ 
nent  establishment.  The  ordinary  expenditures,  neces¬ 
sary  for  the  protection  of  the  whole  Union  with  its  pres¬ 
ent  limits,  are  probably  less  than  would  be  required  for  a 
single  State,  surrounded  by  jealous  and  hostile  neigh¬ 
bors. 

§  54.  But,  in  regard  to  foreign  powers,  the  States 
separately  would  sink  at  once  into  the  insignificance  of 
the  small  European  principalities.  In  the  present  situa¬ 
tion  of  the  world,  a  few  great  powers  possess  the  com¬ 
mand  of  commerce,  both  on  land  and  at  sea.  No  effect¬ 
ual  resistance  could  be  offered  by  any  of  the  States  singly, 
against  any  monopoly,  which  the  great  European  Pow¬ 
ers  might  choose  to  establish,  or  any  pretensions,  which 
they  might  choose  to  assert.  Each  State  would  be  com¬ 
pelled  to  submit  its  own  commerce  to  all  the  burdens 
and  inequalities,  which  they  might  impose  ;  or  purchase 
protection,  by  yielding  up  its  dearest  rights,  and,  perhaps, 
its  own  independence.  A  National  Government,  con¬ 
taining,  as  it  does,  the  strength  of  all  the  States,  affords 
to  all  of  them  a  competent  protection.  Any  navy,  or 
army,  which  could  be  maintained  by  a  single  State,  would 
be  scarcely  formidable  to  any  second-rate  power  in  Eu¬ 
rope  ;  and  yet  it  would  be  an  intolerable  public  burden 
upon  the  resources  of  that  State.  A  navy,  or  army, 
competent  for  all  the  purposes  ol  our  home  defence,  and 
even  for  the  protection  of  our  commerce  on  the  ocean,  is 
within  the  compass  of  the  actual  means  of  the  General 
Government,  without  any  severe  exaction  upon  its  finances. 


44  CONSTITUTION  OF  THE  UNITED  STATES. 

§55.  The  next  object  is,  <£to  promote  the  general 
welfare.”  If  it  should  be  asked,  why  this  may  not  be 
effectually  accomplished  by  the  States,  it  may  be  an¬ 
swered  ;  first,  that  they  do  not  possess  the  means  ;  and 
secondly,  if  they  did,  they  do  not  possess  the  powers  ne¬ 
cessary  to  carry  the  appropriate  measures  into  execution. 
The  means  of  the  several  States  will  rarely  be  found  to 
exceed  their  actual  domestic  wants,  and  appropriations 
to  domestic  improvements.  Their  resources  by  internal 
taxation  must  necessarily  be  limited  ;  and  their  revenue 
from  imports  would,  if  there  were  no  national  government, 
be  small  and  fluctuating.  Their  whole  system  would  be 
defeated  by  the  jealousy,  or  competitions,  or  local  interests 
of  their  neighbors.  The  want  of  uniformity  of  duties  in 
all  the  States,  as  well  as  the  facility  of  smuggling  goods, 
imported  into  one  State,  into  the  territory  of  another,  would 
render  any  efficient  collection  of  duties  almost  impracti¬ 
cable.  This  is  not  a  matter  of  mere  theory.  It  was 
established  by  our  own  history  and  experience  under  the 
Confederation.  The  duties  imposed  upon  the  importation 
of  goods  by  Massachusetts,  were  completely  evaded  or 
nullified  by  their  free  admission  into  the  neighboring  State 
of  Rhode  Island. 

§  56.  But,  if  the  means  were  completely  within  the 
reach  of  the  several  States,  the  jurisdiction  would  still 
be  wanting,  completely  to  carry  into  effect  any  great  or 
comprehensive  plan  for  the  welfare  of  the  whole.  The 
idea  of  a  permanent  and  zealous  co-operation  of  all  the 
States  in  any  one  scheme  for  the  common  welfare,  is  vis¬ 
ionary.  No  scheme  could  be  devised,  which  would  not 
bear  unequally  upon  some  particular  sections  of  the  coun¬ 
try  ;  and  these  inequalities  could  not  be,  as  they  now  are, 
meliorated  and  corrected  under  the  general  government, 
by  other  correspondent  benefits.  Each  State  would  ne¬ 
cessarily  legislate  singly  ;  and  it  is  scarcely  possible,  that 
various  changes  of  councils  should  not  take  place,  before 
any  scheme  could  receive  the  sanction  of  all  of  them. 
Infinite  delays  would  intervene,  and  various  modifications 
of  measures  would  be  proposed,  to  suit  particular  local 
interests,  which  would  again  require  reconsideration. 


EXPOSITION  OF  PREAMBLE. 


45 


After  one  or  two  vain  attempts  to  accomplish  any  great 
system  of  improvements,  there  would  be  a  general  aban¬ 
donment  of  all  efforts  to  produce  a  general  system  for  the 
regulation  of  our  commerce,  or  agriculture,  or  manufac¬ 
tures  ;  and  each  State  would  be  driven  to  consult  its  own 
peculiar  convenience  and  policy  only,  in  despair  of  any 
common  concert.  And  even  if  it  wrere  practicable,  from 
any  peculiar  conjuncture  of  circumstances,  to  bring  about 
such  a  system  at  one  time,  it  is  obvious,  that  it  would  be 
liable  to  be  broken  up,  without  a  moment’s  warning,  at  the 
mere  caprice,  or  pleasure,  or  change  of  policy,  of  a  single 
State. 

§  57.  The  concluding  object,  stated  in  the  Preamble, 
is,  u  to  secure  the  blessings  of  liberty  to  us,  and  our  pos¬ 
terity.”  And  surely  nothing  of  mere  earthly  concern 
is  more  worthy  of  the  profound  reflection  of  wise  and 
good  men,  than  to  erect  structures  of  government, 
which  shall  permanently  sustain  the  interests  of  civil,  po¬ 
litical,  and  religious  liberty,  on  solid  foundations.  The 
great  problem  in  human  governments  has  hitherto  been, 
how  to  combine  durability  with  moderation  in  powers, 
energy  with  equality  of  rights,  responsibility  with  a  sense 
of  independence,  steadiness  in  councils  with  popular  elec¬ 
tions,  and  a  lofty  spirit  of  patriotism  with  the  love  of  per¬ 
sonal  aggrandizement  ;  in  short,  how  to  combine  the  great¬ 
est  happiness  of  the  whole  with  the  least  practicable 
restraints,  so  as  to  insure  permanence  in  the  public  insti¬ 
tutions,  intelligent  legislation,  and  incorruptible  private 
virtue.  The  Constitution  of  the  United  States  aims  at  the 
attainment  of  these  ends,  by  the  arrangements  and  distri¬ 
butions  of  its  powers  ;  by  the  introduction  of  checks  and 
balances  in  all  its  departments  ;  by  making  the  existence 
of  the  State  governments  an  essential  part  of  its  own  organ¬ 
ization  ;  by  leaving  with  the  States  the  ordinary  powers  of 
domestic  legislation  ;  and,  at  the  same  time,  by  drawing  to 
itself  those  powers  only,  vvhich  are  strictly  national,  or  con¬ 
cern  the  general  welfare.  Its  duties  and  its  powers  thus 
naturally  combine  to  make  it  the  common  guardian  and 
friend  of  all  the  States  ;  and  in  return,  the  States,  while 
they  may  exercise  a  salutary  vigilance  for  their  own  self- 


46  CONSTITUTION  OF  THE  UNITED  STATES. 

protection,  are  persuasively  taught,  that  the  blessings  of 
liberty,  secured  by  the  national  government,  are  far 
more  certain,  more  various,  and  more  extensive,  than 
they  would  be  under  their  own  distinct  and  independent 
sovereignties. 

§  58.  Let  us  now  enter  upon  a  more  close  survey  of 
the  structure  and  powers  of  the  national  Constitution, 
that  we  may  see,  whether  it  is  as  wisely  framed  as  its 
founders  believed  ;  so  as  to  justify  our  confidence  in  its 
durability,  and  in  its  adaptation  to  our  wants,  and  the  great 
objects  proposed  in  the  Preamble.  If  it  be  so  wisely 
framed,  then,  indeed,  it  will  be  entitled  to  our  most  pro¬ 
found  reverence  ;  and  we  shall  accustom  ourselves  to  re¬ 
pel  with  indignation  every  attempt  to  weaken  its  powers, 
or  obstruct  its  operations,  or  diminish  its  influence,  as 
involving  our  own  degradation,  and,  ultimately,  the  ruin  of 
the  States  themselves. 


CHAPTER  VIII. 

Distribution  of  Powers. — The  Legislative '  Department. 

§  59.  In  surveying  the  general  structure  of  the  Consti¬ 
tution  of  the  United  States,  we  are  naturally  led  to  an 
examination  of  the  fundamental  principles,  on  which  it  is 
organized,  for  the  purpose  of  carrying  into  effect  the  ob¬ 
jects  disclosed  in  the  Preamble.  Every  government  must 
include  within  its  scope,  at  least  if  it  is  to  possess  suitable 
stability  and  energy,  the  exercise  of  the  three  great  pow¬ 
ers,  upon  which  all  governments  are  supposed  to  rest, 
viz.,  the  executive,  the  legislative,  and  the  judicial  powers. 
The  manner  and  extent,  in  which  these  powers  are  to  be 
exercised,  and  the  functionaries,  in  whom  they  are  to  be 
vested,  constitute  the  great  distinctions,  which  are  known 
in  the  forms  of  government.  In  absolute  governments, 
the  whole  executive,  legislative,  and  judicial  powers  are, 
at  least  in  their  final  result,  exclusively  confided  to  a  sin¬ 
gle  individual ;  and  such  a  form  of  government  is  denomi- 


LEGISLATIVE  DEPARTMENT. 


47 


nated  a  Despotism,  as  the  whole  sovereignty  of  the  State 
is  vested  in  him.  If  the  same  powers  are  exclusively 
confided  to  a  few  persons,  constituting  a  permanent  sove¬ 
reign  council,  the  government  may  be  appropriately  de¬ 
nominated  an  absolute  or  despotic  Aristocracy.  If  they 
are  exercised  by  the  people  at  large  in  their  original  sove¬ 
reign  assemblies,  the  government  is  a  pure  and  absolute 
Democracy.  But  it  is  more  common  to  find  these  pow¬ 
ers  divided,  and  separately  exercised  by  independent 
functionaries,  the  executive  power  by  one  department,  the 
legislative  by  another,  and  the  judicial  by  a  third  ;  and  in 
these  cases  the  government  is  properly  deemed  a  mixed 
one  ;  a  mixed  monarchy,  if  the  executive  power  is  he¬ 
reditary  in  a  single  person  ;  a  mixed  aristocracy,  if  it  is 
hereditary  in  several  chieftains  or  families  ;  and  a  mixed 
democracy  or  republic,  if  it  is  delegated  by  election,  and 
is  not  hereditary.  In  mixed  monarchies  and  aristocracies, 
some  of  the  functionaries  of  the  legislative  and  judicial 
powers  are,  or  at  least  may  be,  hereditary.  But  in  a 
representative  republic,  all  power  emanates  from  the  peo¬ 
ple,  and  is  exercised  by  their  choice,  and  never  extends 
beyond  the  lives  of  the  individuals,  to  whom  it  is  intrusted. 
It  may  be  intrusted  for  any  shorter  period  ;  and  then  it 
returns  to  them  again,  to  be  again  delegated  by  a  new 
choice. 

§  60.  The  first  thing,  that  strikes  us,  upon  the  slightest 
survey  of  the  national  Constitution,  is,  that  its  structure 
contains  a  fundamental  separation  of  the  three  great  de¬ 
partments  of  government,  the  legislative,  the  executive, 
and  the  judicial.  The  existence  of  all  these  departments 
has  always  been  found  indispensable  to  due  energy  and 
stability  in  a  government.  Their  separation  has  always 
been  found  equally  indispensable,  for  the  preservation  of 
public  liberty  and  private  rights.  Whenever  they  are  all 
vested  in  one  person  or  body  of  men,  the  government  is 
in  fact  a  despotism,  by  whatever  name  it  may  be  called, 
whether  a  monarchy,  or  an  aristocracy,  or  a  democracy. 
When,  therefore,  the  Convention,  which  framed  the  Con¬ 
stitution,  determined  on  a  more  efficient  system  than  the 
Confederation,  the  first  resolution  adopted  by  them  was, 


48 


CONSTITUTION  OF  THE  UNITED  STATES. 


that  ua  national  government  ought  to  be  established, 
consisting  of  a  supreme  legislative,  judiciary,  and  execu¬ 
tive.” 

§  61.  In  the  establishment  of  free  governments,  the 
division  of  the  three  great  powers  of  government,  the  ex¬ 
ecutive,  the  legislative,  and  the  judicial,  among  different 
functionaries,  has  been  a  favorite  policy  with  patriots  and 
statesmen.  It  has  by  many  been  deemed  a  maxim  of 
vital  importance,  that  these  powers  should  for  ever  be 
kept  separate  and  distinct.  And,  accordingly,  we  find  it 
laid  down,  with  emphatic  care,  in  the  Bill  of  Rights  of  sev¬ 
eral  of  the  State  Constitutions. 

§  62.  The  general  reasoning,  by  which  the  maxim  is 
supported,  independently  of  the  just  weight  of  the  authori¬ 
ty  in  its  support,  seems  entirely  satisfactory.  What  is 
of  far  more  value  than  any  mere  reasoning,  experience 
has  demonstrated  it  to  be  founded  in  a  just  view  of  the 
nature  of  government,  and  of  the  safety  and  liberty  of  the 
people.  It  is  no  small  commendation  of  the  Consti¬ 
tution  of  the  United  States,  that,  instead  of  adopting  a 
new  theory,  it  has  placed  this  practical  truth,  at  the  ba¬ 
sis  of  its  organization.  It  has  placed  the  legislative,  ex¬ 
ecutive,  and  judicial  powers  in  different  hands.  It  has, 
as  we  shall  presently  see,  made  the  term  of  office  and  the 
organization  of  each  department  different.  For  objects  of 
permanent  and  paramount  importance,  it  has  given  to  the 
judicial  department  a  tenure  of  office  during  good  beha¬ 
vior  ;  while  it  has  limited  each  of  the  others  to  a  term  of 
years. 

§  63.  But  when  we  speak  of  a  separation  of  the  three 
great  departments  of  government,  and  maintain,  that  that 
separation  is  indispensable  to  public  liberty,  we  are  to 
understand  this  maxim  in  a  limited  sense.  It  is  not  meant 
to  affirm,  that  they  must  be  kept  wholly  and  entirely  sep¬ 
arate  and  distinct,  and  have  no  common  link  of  connection 
or  dependence,  the  one  upon  the  other,  in  the  slightest 
degree.  The  true  meaning  is,  that  the  whole  power  of 
one  of  these  departments  should  not  be  exercised  by  the 
same  hands,  which  possess  the  whole  power  of  either  of 
the  other  departments ;  and  that  such  exercise  of  the 


LEGISLATIVE  DEPARTMENT. 


49 


whole  by  the  same  hands  would  subvert  the  principles  of 
a  free  constitution. 

§  64.  How  far  the  Constitution  of  the  United  States, 
in  the  actual  separation  of  these  departments,  and  the  oc¬ 
casional  mixtures  of  some  of  the  powers  of  each,  has 
accomplished  the  great  objects  of  the  maxim,  which  we 
have  been  considering,  will  appear  more  fully,  when  a 
survey  is  taken  of  the  particular  powers  confided  to  each 
department.  But  the  true  and  only  test  must,  after  all, 
be  experience,  which  corrects  at  once  the  errors  of  theo¬ 
ry,  and  fortifies  and  illustrates  the  eternal  judgements  of 
Nature. 

§  65.  The  first  section,  of  the  first  article,  begins  with 
the  structure  of  the  Legislature.  It  is  in  these  words  : — 

u  All  legislative  powers,  herein  granted,  shall  be  vested 
in  a  Congress  of  the  United  States;  which  shall  con¬ 
sist  of  a  Senate  and  House  of  Representatives.”  Un¬ 
der  the  Confederation,  the  whole  legislative  power  of  the 
Union  was  confided  to  a  single  branch  ;  and,  limited  as 
that  power  was,  this  concentration  of  it,  in  a  single  body, 
was  deemed  a  prominent  defect.  The  Constitution,  on 
the  other  hand,  adopts,  as  a  fundamental  rule,  the  exercise 
of  the  legislative  power  by  two  distinct  and  independent 
branches.  The  advantages  of  this  division  are,  in  the 
first  place,  that  it  interposes  a  great  check  upon  undue, 
hasty,  and  oppressive  legislation.  In  the  next  place,  it 
interposes  a  barrier  against  the  strong  propensity  of  all 
public  bodies  to  accumulate  all  power,  patronage,  and  in¬ 
fluence  in  their  own  hands.  In  the  next  place,  it  oper¬ 
ates,  indirectly,  to  retard,  if  not  wholly  to  prevent,  the 
success  of  the  efforts  of  a  few  popular  leaders,  by  their 
combinations  and  intrigues  in  a  single  body,  to  carry  their 
own  personal,  private,  or  party  objects  into  effect,  uncon¬ 
nected  with  the  public  good.  In  the  next  place,  it  secures 
a  deliberate  review  of  the  same  measures,  by  independent 
minds,  in  different  branches  of  government,  engaged  in  the 
same  habits  of  legislation,  but  organized  upon  a  different 
system  of  elections.  And,  in  the  last  place,  it  affords 
great  securities  to  public  liberty,  by  requiring  the  co-oper¬ 
ation  of  different  bodies,  which  can  scarcely  ever,  if  prop- 

5  xiii. 


50 


CONSTITUTION  OF  THE  UNITED  STATES. 


erly  organized,  embrace  the  same  sectional  or  local  inter¬ 
ests,  or  influences,  in  exactly  the  same  proportion,  as  a 
single  body.  The  value  of  such  a  separate  organization 
will,  of  course,  be  greatly  enhanced,  the  more  the  ele¬ 
ments,  of  which  each  body  is  composed,  differ  from  each 
other,  in  the  mode  of  choice,  in  the  qualifications,  and  in 
the  duration  of  office  of  the  members,  provided  due  intel¬ 
ligence  and  virtue  are  secured  in  each  body.  All  these 
considerations  had  great  weight  in  the  Convention,  which 
framed  the  Constitution  of  the  United  States.  We  shall 
presently  see,  how  far  these  desirable  modifications  have 
been  attained  in  the  actual  composition  of  the  Senate  and 
House  of  Representatives. 


CHAPTER  IX. 

The  House  of  Representatives. 

§  66.  The  second  section,  of  the  first  article,  contains 
the  structure  and  organization  of  the  House  of  Represent¬ 
atives.  The  first  clause  is — “The  House  of  Repre¬ 
sentatives  shall  be  composed  of  members  chosen  every 
second  year  by  the  people  of  the  several  States  ;  and 
the  electors  in  each  State  shall  have  the  qualifications, 
requisite  for  electors  of  the  most  numerous  branch  of 
the  State  legislature.” 

§  67.  First,  the  principle  of  representation.  The 
Representatives  are  to  be  chosen  by  the  people.  No 
reasoning  was  necessary,  to  satisfy  the  American  people 
of  the  advantages  of  a  House  of  Representatives,  which 
should  emanate  directly  from  themselves,  which  should 
guard  their  interests,  support  their  rights,  express  their 
opinions,  make  known  their  wants,  redress  their  grievan¬ 
ces,  and  introduce  a  pervading  popular  influence  through¬ 
out  all  the  operations  of  the  national  government.  Their 
own  experience,  as  colonists,  as  well  as  the  experi¬ 
ence  of  the  parent  country,  and  the  general  deductions 
of  theory,  had  settled  it,  as  a  fundamental  principle  of  a 


HOUSE  OF  REPRESENTATIVES. 


51 


free  government,  and  especially  of  a  republican  govern¬ 
ment,  that  no  laws  ought  to  be  passed  without  the  con¬ 
sent  of  the  people,  through  representatives,  immediately 
chosen  by,  and  responsible  to  them. 

§  68.  The  indirect  advantages,  from  this  immediate 
agency  of  the  people  in  the  choice  of  their  Representatives, 
are  of  incalculable  benefit,  and  deserve  a  brief  mention 
in  this  place,  because  they  furnish  us  with  matter  for 
most  serious  reflection,  in  regard  to  the  actual  operations 
and  influences  of  republican  governments.  In  the  first 
place,  the  right  confers  an  additional  sense  of  personal 
dignity  and  duty  upon  the  mass  of  the  people.  It  gives 
a  strong  direction  to  the  education,  studies,  and  pursuits 
of  the  whole  community.  It  enlarges  the  sphere  of 
action,  and  contributes,  in  a  high  degree,  to  the  formation 
of  the  public  manners,  and  national  character.  It  pro¬ 
cures  to  the  common  people  courtesy  and  sympathy  from 
their  superiors,  and  diffuses  a  common  confidence,  as 
well  as  a  common  interest,  through  all  the  ranks  of  so¬ 
ciety.  It  awakens  a  desire  to  examine,  and  sift,  and  de¬ 
bate  all  public  proceedings  ;  and  it  thus  nourishes  a  lively 
curiosity  to  acquire  knowledge,  and,  at  the  same  time, 
furnishes  the  means  of  gratifying  it.  The  proceedings 
and  debates  of  the  legislature  ;  the  conduct  of  public 
officers,  from  the  highest  to  the  lowest  ;  the  character  and 
conduct  of  the  Executive  and  his  ministers  ;  the  struggles, 
intrigues,  and  conduct  of  different  parties  ;  and  the  dis¬ 
cussion  of  the  great  public  measures  and  questions  which 
agitate  and  divide  the  community  ; — are  not  only  freely 
canvassed,  and  thus  improve  and  elevate  conversation  ; 
but  they  gradually  furnish  the  mind  with  safe  and  solid 
materials  for  judgement  upon  all  public  affairs,  and  check 
that  impetuosity  and  rashness,  to  which  sudden  impulses 
might  otherwise  lead  the  people,  when  they  are  artfully 
misguided  by  selfish  demagogues,  and  plausible  schemes 
of  change. 

§  69.  Secondly,  the  qualifications  of  electors.  These 
were  various  in  the  different  States.  In  some  of  them, 
none  but  freeholders  were  entitled  to  vote  ;  in  others, 
only  persons,  who  had  been  admitted  to  the  privileges  of 


52  CONSTITUTION  OF  THE  UNITED  STATES. 

freemen  ;  in  others,  a  qualification  of  property  was  re¬ 
quired  of  voters  ;  in  others,  the  payment  of  taxes  ;  and 
in  others,  again,  the  right  of  suffrage  was  almost  universal. 
This  consideration  had  great  weight  in  the  Convention  ; 
and  the  extreme  difficulty  of  agreeing  upon  any  uniform 
rule  of  voting,  which  should  he  acceptable  to  all  the 
States,  induced  the  Convention,  finally,  after  much  dis¬ 
cussion,  to  adopt  the  existing  rule  in  the  choice  of  Repre¬ 
sentatives  in  the  popular  branch  of  the  State  legislatures. 
Thus,  the  peculiar  wishes  of  each  State,  in  the  formation 
of  its  own  popular  branch,  were  consulted  ;  and  some 
not  unimportant  diversities  were  introduced  into  the  actual 
composition  of  the  national  House  of  Representatives. 
All  the  members  would  represent  the  people,  hut  not  ex¬ 
actly  under  influences  precisely  of  the  same  character. 

§  70.  Thirdly,  the  term  of  service  of  the  Representa¬ 
tives.  It  is  two  years.  This  period,  with  reference  to 
the  nature  of  the  duties  to  be  performed  by  the  members, 
to  the  knowledge  and  experience  essential  to  a  right  per¬ 
formance  of  them,  and  to  the  periods,  for  which  the 
members  of  the  State  legislatures  are  chosen,  seems  as  short 
as  an  enlightened  regard  to  the  public  good  could  require. 
A  very  short  term  of  service  would  bring  together  a  great 
many  new  members,  with  little  or  no  experience  in  the 
national  business  ;  the  very  frequency  of  the  elections 
would  render  the  office  of  less  importance  to  able  men  ; 
and  some  of  the  duties  to  be  performed  would  require 
more  time,  and  more  mature  inquiries,  than  could  ho 
gathered,  in  the  brief  space  of  a  single  session,  from  tho 
distant  parts  of  so  extensive  a  territory.  What  might  be 
well  begun  by  one  set  of  men,  could  scarcely  be  carried 
on,  in  the  same  spirit,  by  another.  So  that  there  would 
be  great  danger  of  new  and  immature  plans  succeeding 
each  other,  without  any  well-established  system  of  opera¬ 
tions. 

§  71.  But  the  very  nature  and  objects  of.  the  national 
government  require  far  more  experience  and  knowledge, 
than  what  may  he  thought  requisite  in  the  members  of  a 
State  legislature.  For  the  latter,  a  knowledge  of  local 
interests  and  opinions  may  ordinarily  suffice.  But  it  is 


HOUSE  OF  REPRESENTATIVES. 


53 


far  different  with  a  member  of  Congress.  He  is  to  legis¬ 
late  for  the  interest  and  welfare,  not  of  one  State  only, 
but  of  all  the  States.  It  is  not  enough,  that  he  comes  to 
the  task  with  an  upright  intention  and  sound  judgement  ; 
but  he  must  have  a  competent  degree  of  knowledge  of  all 
the  subjects,  on  which  he  is  called  to  legislate  ;  and  he 
must  have  skill,  as  to  the  best  mode  of  applying  it.  The 
latter  can  scarcely  be  acquired,  but  by  long  experience 
and  training  in  the  national  councils.  The  period  of  ser¬ 
vice  ought,  therefore,  to  bear  some  proportion  to  the  va¬ 
riety  of  knowledge  and  practical  skill,  which  the  duties 
of  the  station  demand. 

§  72.  The  most  superficial  glance  at  the  relative  du¬ 
ties  of  a  member  of  a  State  legislature  and  of  those  of  a 
member  of  Congress,  will  put  this  matter  in  a  striking 
light.  In  a  single  State,  the  habits,  manners,  institutions, 
and  laws,  are  uniform,  and  all  the  citizens  are  more  or 
less  conversant  with  them.  The  relative  bearings  of  the 
various  pursuits  and  occupations  of  the  people  are  well 
understood,  or  easily  ascertained.  The  general  affairs 
of  the  State  lie  in  a  comparatively  narrow  compass,  and 
are  daily  discussed  and  examined  by  those,  who  have  an 
immediate  interest  in  them,  and,  by  frequent  communica¬ 
tion  with  each  other,  can  interchange  opinions.  It  is 
very  different  with  the  general  government.  There, 
every  measure  is  to  be  discussed  with  reference  to  the 
rights,  interests,  and  pursuits  of  all  the  States.  When* 
the  Constitution  was  adopted,  there  were  thirteen,  and 
there  are  now  twenty-six  States,  having  different  laws, 
institutions,  employments,  products,  and  climates,  and 
many  artificial,  as  well  as  natural  differences  in  the  struc¬ 
ture  of  society,  growing  out  of  these  circumstances. 
Some  of  them  are  almost  wholly  agricultural  ;  some 
commercial  ;  some  manufacturing  ;  some  have  a  mixture 
of  all  ;  and  in  no  two  of  them  are  there  precisely  the 
same  relative  adjustments  of  all  these  interests.  No  le¬ 
gislation  for  the  Union  can  be  safe  or  wise,  which  is  not 
founded  upon  an  accurate  knowledge  of  these  diversi¬ 
ties,  and  their  practical  influence  upon  public  measures. 
What  may  be  beneficial  and  politic,  with  reference  to  the 


54  CONSTITUTION  OF  THE  UNITED  STATES. 

interests  of  a  single  State,  may  be  subversive  of  those  of 
other  States.  A  regulation  of  commerce,  wise  and  just 
for  the  commercial  States,  may  strike  at  the  foundation  of 
the  prosperity  of  the  agricultural  or  manufacturing  States. 
And,  on  the  other  hand,  a  measure  beneficial  to  agricul¬ 
ture  or  manufactures,  may  disturb,  and  even  overwhelm 
the  shipping  interest.  Large  and  enlightened  views, 
comprehensive  information,  and  a  just  attention  to  the 
local  peculiarities,  and  products,  and  employments  of 
different  States,  are  absolutely  indispensable  qualifications 
for  members  of  Congress.  Yet  it  is  obvious,  that  if 
very  short  periods  of  service  are  to  be  allowed  to  mem¬ 
bers  of  Congress,  the  continual  fluctuations  in  the  public 
councils,  and  the  perpetual  changes  of  members,  will  be 
very  unfavorable  to  the  acquirement  of  the  proper 
knowledge,  and  the  due  application  of  it  for  the  public 
welfare.  One  set  of  men  will  just  have  mastered  the 
necessary  information,  when  they  will  be  succeeded  by  a 
second  set,  who  are  to  go  over  the  same  grounds,  and 
then  are  to  be  succeeded  by  a  third.  So  that  inexpe¬ 
rience,  instead  of  practical  wisdom,  hasty  legislation,  in¬ 
stead  of  sober  deliberation,  and  imperfect  projects,  in¬ 
stead  of  well-constructed  systems,  would  characterize  the 
national  government. 

§  73.  Fourthly,  the  qualifications  of  Representatives. 
The  Constitution  declares — u  No  person  shall  be  a  Repre¬ 
sentative,  who  shall  not  have  attained  to  the  age  of 
twenty-five  years  ;  and  been  seven  years  a  citizen  of  the 
United  States  ;  and  who  shall  not,  when  elected,  be  an 
inhabitant  of  that  State,  in  which  he  shall  be  chosen.” 
These  qualifications  are  few  and  simple.  They  respect 
only  age,  citizenship,  and  inhabitancy. 

§  74.  First,  in  regard,  to  age.  That  some  qualifica¬ 
tion,  as  to  age,  is  desirable,  cannot  well  be  doubted,  if 
knowledge,  or  experience,  or  wisdom,  is  of  any  value  in 
the  administration  of  public  affairs.  And  if  any  quali¬ 
fication  is  required,  what  can  be  more  suitable  than 
twenty-five  years  of  age  ?  The  character  and  principles 
of  young  men  can  scarcely  be  understood  at  the  moment 
of  their  majority.  They  are  then  new  to  the  rights  even 


HOUSE  OF  REPRESENTATIVES. 


55 


of  self-government ;  warm  in  their  passions  ;  ardent  in 
their  expectations  ;  and  too  eager  in  their  favorite  pur¬ 
suits,  to  learn  the  lessons  of  caution,  which  riper  years  in¬ 
culcate.  Four  years  of  probation,  is  but  a  very  short 
space,  in  which  to  try  their  virtues,  to  develope  their 
talents,  to  enlarge  their  intellectual  resources,  and  to  give 
them  a  practical  knowledge  of  the  true  principles  of  legis¬ 
lation.  Indeed,  it  may  be  safely  said,  that  a  much  longer 
period  will  scarcely  suffice  to  furnish  them  with  that  thor¬ 
ough  insight  into  the  business  of  human  life,  which  is  in¬ 
dispensable  to  a  safe  and  enlightened  exercise  of  public 
duties. 

§  75.  Secondly,  in  regard  to  citizenship.  No  person 
will  deny  the  propriety  of  excluding  aliens  from  any  share 
in  the  administration  of  the  affairs  of  the  national  govern¬ 
ment.  No  persons,  but  citizens,  can  be  presumed  to  feel 
that  deep  sense  of  the  value  of  our  domestic  institutions,  and 
that  permanent  attachment  to  the  soil  and  interests  of  our 
country,  which  are  the  true  sources  of  a  healthy  patriot¬ 
ism.  The  only  practical  question  would  seem  to  be, 
whether  foreigners,  even  after  they  were  naturalized, 
should  be  permitted  to  hold  office.  Most  nations  studi¬ 
ously  exclude  them,  from  policy,  or  from  jealousy.  But 
the  peculiar  circumstances  of  our  country  were  supposed 
to  call  for  a  less  rigorous  course  ;  and  the  period  of 
seven  years  was  selected  as  one,  which  would  enable 
naturalized  citizens  to  acquire  a  reasonable  familiarity 
with  the  principles  of  our  institutions  and  with  the  inter¬ 
ests  of  the  people  ;  and  which,  at  the  same  time,  would 
justify  the  latter  in  reposing  confidence  in  their  talents, 
virtues,  and  patriotism. 

§  76.  Thirdly,  in  regard  to  inhabitancy.  The  Repre¬ 
sentative  is  required  to  be  an  inhabitant  of  the  State,  at 
the  time  when  he  is  chosen.  The  object  of  this  clause, 
doubtless,  is  to  secure,  on  the  part  of  the  Representative, 
a  familiar  knowledge  of  the  interests  of  the  people  whom 
he  represents,  a  just  responsibility  to  them,  and  a  per¬ 
sonal  share  in  all  the  local  results  of  the  measures,  which 
he  shall  support.  It  is  observable,  that  inhabitancy  is 
required  in  the  State  only,  and  not  in  any  particular  elec- 


56  CONSTITUTION  OF  THE  UNITED  STATES. 

tion  district  ;  so  that  the  Constitution  leaves  a  wide  field 
of  choice  open  to  the  electors.  And  if  we  consider, 
how  various  the  interests,  pursuits,  employments,  pro¬ 
ducts,  and  local  circumstances  of  the  different  States  are, 
we  can  scarcely  be  surprised,  that  there  should  be  a 
marked  anxiety  to  secure  a  just  representation  of  all  of 
them  in  the  national  councils. 

§  77.  Subject  to  these  reasonable  qualifications,  the 
House  of  Representatives  is  open  to  persons  of  merit  of 
every  description,  whether  native  or  adopted  citizens, 
whether  young  or  old,  whether  rich  or  poor,  without  any 
discrimination  of  rank,  or  business,  or  profession,  or 
religious  opinion. 

§  78.  The  next  clause  of  the  Constitution  respects  the 
apportionment  of  Representatives  among  the  States.  It 
declares, — u  Representatives,  and  direct  taxes,  shall  be 
apportioned  among  the  several  States,  which  may  be 
included  within  this  Union,  according  to  their  respec¬ 
tive  numbers,  which  shall  be  determined  by  adding  to 
the  whole  number  of  free  persons,  including  those  bound 
to  service  for  a  term  of  years,  and  excluding  Indians  not 
taxed,  three  fifths  of  all  other  persons.  The  actual  enu¬ 
meration  shall  be  made  within  three  years  after  the  first 
meeting  of  the  Congress  of  the  United  States,  and  within 
every  subsequent  term  of  ten  years,  in  such  manner,  as 
they  shall  by  law  direct.  The  number  of  Representa¬ 
tives  shall  not  exceed  one  for  every  thirty  thousand  ;  but 
each  State  shall  have  at  least  one  Representative.  And 
until  such  enumeration  shall  be  made,  the  State  of  New 
Hampshire  shall  be  entitled  to  choose  three  ;  Massachu¬ 
setts,  eight ;  Rhode  Island  and  Providence  Plantations, 
one  ;  Connecticut,  five  ;  New  York,  six  ;  New  Jersey, 
four  ;  Pennsylvania,  eight  ;  Delaware,  one  ;  Maryland, 
six  ;  Virginia,  ten  ;  North  Carolina,  five  ;  South  Caro¬ 
lina,  five  ;  and  Georgia,  three.” 

§79.  Under  the  Confederation,  each  State  was  en¬ 
titled  to  one  vote  only,  but  might  send  as  many  delegates 
to  Congress,  as  it  should  choose,  not  less  than  two,  nor 
more  than  seven  ;  and  of  course,  the  concurrence  of  a 
majority  of  its  delegates  was  necessary  to  every  vote  of 


HOUSE  OF  REPRESENTATIVES. 


57 


each  State.  In  the  House  of  Representatives,  each 
member  is  entitled  to  one  vote,  and  therefore  the  appor¬ 
tionment  of  Representatives  became,  among  the  States,  a 
subject  of  deep  interest,  and  of  no  inconsiderable  diver¬ 
sity  of  opinion  in  the  Convention.  The  small  States 
insisted  upon  an  equality  of  representation  in  the  House 
of  Representatives,  as  well  as  in  the  Senate,  which  was 
strenuously  resisted  by  the  large  States.  The  slave¬ 
holding  States  insisted  on  a  representation  strictly  accord¬ 
ing  to  the  number  of  inhabitants,  whether  they  were 
slaves  or  free  persons,  within  the  State.  The  non¬ 
slave-holding  States  contended  for  a  representation  ac¬ 
cording  to  the  number  of  free  persons  only.  The  con¬ 
troversy  was  full  of  excitement,  and  was  maintained  with 
so  much  obstinacy,  on  each  side,  that  the  Convention  was 
more  than  once  on  the  eve  of  a  dissolution.  At  length, 
the  present  system  was  adopted,  by  way  of  compromise. 
It  was  seen  to  be  unequal  in  its  operation,  but  was  a 
necessary  sacrifice  to  that  spirit  of  conciliation,  on  which 
the  Union  was  founded.  The  exception  of  Indians  was 
of  no  permanent  importance  ;  and  the  persons  bound  to 
service  for  a  term  of  years  were  too  few  to  produce  any 
sensible  effect  in  the  enumeration.  The  real  difficulty 
was,  as  to  slaves,  who  were  included  under  the  mild  ap¬ 
pellation  of  u  all  other  persons.”  Three  fifths  of  the 
slaves  are  added  to  the  number  of  free  persons,  as  the 
basis  of  the  apportionment. 

§  80.  In  order  to  reconcile  the  non-slave-holding 
States  to  this  arrangement,  it  was  agreed,  that  direct 
taxes  (the  nature  of  which  we  shall  hereafter  consider) 
should  be  apportioned  in  the  same  manner  as  Representa¬ 
tives.  This  provision  is  more  specious  than  solid  ;  for, 
in  reality,  it  exempts  the  remaining  two  fifths  of  the 
slaves  from  direct  taxation.  But,  in  the  practical  ope¬ 
rations  of  the  government,  a  far  more  striking  inequality 
has  been  developed.  The  principle  of  representation  is 
uniform  and  constant  :  whereas,  the  imposition  of  direct 
taxes  is  occasional  and  rare  ;  and,  in  fact,  three  direct 
taxes  only  have  been  laid,  at  distant  periods  from  each 
other,  since  the  adoption  of  the  Constitution.  The  slave- 


58 


CONSTITUTION  OF  THE  UNITED  STATES. 


holding  States  have,  at  the  present  time,  in  Congress, 
twenty-five  Representatives  more  than  they  would  have 
upon  the  basis  of  an  enumeration  of  free  persons  only. 
The  apportionment,  however,  viewed  as  a  matter  of 
compromise,  is  entitled  to  great  praise,  for  its  modera¬ 
tion,  its  aim  at  practical  utility,  and  its  tendency  to  satis¬ 
fy  the  people  of  every  State  in  the  Union,  that  the  Con¬ 
stitution  ought  to  be  dear  to  all,  by  the  privileges,  which 
it  confers,  as  well  as  by  the  blessings,  which  it  secures. 
It  has  sometimes  been  complained  of  as  a  grievance,  found¬ 
ed  in  a  gross  inequality  and  an  unjustifiable  surrender  of 
important  rights.  But  whatever  force  there  may  be  in 
the  suggestion,  abstractly  considered,  it  should  never 
be  forgotten  that  it  was  a  necessary  price  paid  for  the 
Union  ;  and  if  it  had  been  refused,  the  Constitution  never 
would  have  been  recommended  for  the  adoption  of  the 
people,  even  by  the  Convention,  which  framed  it. 

§  81.  In  order  to  carry  into  effect  this  principle  of 
apportionment,  it  was  indispensable,  that  some  provision 
should  be  made  for  ascertaining,  at  stated  times,  the  pop¬ 
ulation  of  each  State.  Unless  this  should  be  done,  it  is 
obvious,  that,  as  the  growth  of  the  different  States  would 
be  in  very  unequal  proportions,  the  representation  would 
soon  be  marked  by  a  corresponding  inequality.  To 
illustrate  this,  we  need  only  to  look  at  Delaware,  which 
now  sends  only  one  Representative,  as  it  did  in  the  first 
Congress,  and  to  New  York,  which  then  sent  six,  and 
now  sends  forty  Representatives.  Similar,  though  not 
as  great,  diversities  exist  in  the  comparative  representa¬ 
tion  of  several  other  States.  Some  have  remained  near¬ 
ly  stationary,  and  others  have  had  a  very  rapid  increase 
of  population.  The  Constitution  has,  therefore,  wisely 
provided,  that  there  shall  be  a  new  enumeration  of  the 
inhabitants  of  all  the  States,  every  ten  years,  which  is 
commonly  called  the  decennial  census. 

§  82.  There  is  one  question  of  great  practical  impor¬ 
tance,  as  to  the  apportionment  of  Representatives,  which 
has  constantly  been  found  to  involve  much  embarrassment 
and  difficulty  ;  and  that  is,  how  and  in  what  manner  the 
apportionment  is  to  be  made.  The  language  of  the  Con- 


HOUSE  OF  REPRESENTATIVES. 


59 


stitution  is,  that  u  Representatives  and  direct  taxes  shall 
be  apportioned  among  the  several  States,  &c.,  according 
to  their  respective  numbers  and  at  the  first  view  it 
would  not  seem  to  involve  the  slightest  difficulty.  A 
moment’s  reflection  will  dissipate  the  illusion,  and  teach 
us,  that  there  is  a  difficulty  intrinsic  in  the  very  nature  of 
the  subject.  In  regard  to  direct  taxes,  the  natural  course 
would  be  to  assume  a  particular  sum  to  be  raised,  as  three 
millions  of  dollars  ;  and  to  apportion  it  among  the  States 
according  to  their  relative  numbers.  But  even  here, 
there  will  always  be  a  very  small  fractional  amount  inca¬ 
pable  of  exact  distribution,  since  the  numbers  in  each 
State  will  never  exactly  coincide  with  any  common  divi¬ 
sor,  or  give  an  exact  aliquot  part  for  each  State  without 
any  remainder.  But,  as  the  amount  may  be  carried 
through  a  long  series  of  descending  money  fractions,  it 
may  be  ultimately  reduced  to  the  smallest  fraction  of  any 
existing,  or  even  imaginary  coin. 

§  83.  But  the  difficulty  is  far  otherwise  in  regard  to 
Representatives.  Here,  there  can  be  no  subdivision  of 
the  unit;  each  State  must  be  entitled  to  an  entire  Repre¬ 
sentative,  and  a  fraction  of  a  Representative  is  incapable 
of  apportionment.  Yet  it  will  be  perceived  at  once,  that 
it  is  scarcely  possible,  and  certainly  is  wholly  improbable, 
that  the  relative  numbers  in  each  State  should  bear  such 
an  exact  proportion  to  the  aggregate,  that  there  should 
exist  a  common  divisor  for  all,  which  should  leave  no 
fraction  in  any  State.  Such  a  case  never  yet  has  existed  ; 
and  in  all  human  probability  it  never  will.  Every  com¬ 
mon  divisor,  hitherto  applied,  has  left  a  fraction,  greater 
or  smaller,  in  every  State  ;  and  what  has  been,  in  the  past, 
must  continue  to  be,  for  the  future.  Assume  the  whole 
population  to  be  three,  or  six,  or  nine,  or  twelve  millions, 
or  any  other  number  ;  if  you  follow  the  injunctions  of  the 
Constitution,  and  attempt  to  apportion  the  Representatives 
according  to  the  numbers  in  each  State,  it  wi  11  be  found 
to  be  absolutely  impossible.  The  theory,  however  true, 
becomes  practically  false  in  its  application.  Each  State 
may  have  assigned  to  it  a  relative  proportion  of  Representa¬ 
tives,  up  to  a  given  number,  the  whole  being  divisible  by 


60 


CONSTITUTION  OF  THE  UNITED  STATES. 


some  common  divisor  ;  but  the  fraction  of  population  be¬ 
longing  to  each  beyond  that  point  is  left  unprovided  for.  So 
that  the  apportionment  is,  at  best,  only  an  approximation  to 
the  rule  laid  down  by  the  Constitution,  and  not  a  strict 
compliance  with  the  rule.  The  fraction  in  one  State  may 
be  ten  times  as  great,  as  that  in  another  ;  and  so  may 
differ  in  each  State  in  any  assignable  mathematical  pro¬ 
portion.  What  then  is  to  be  done  ?  Is  the  Constitution 
to  be  wholly  disregarded  on  this  point  ?  Or  is  it  to  be 
followed  out  in  its  true  spirit,  though  unavoidably  differing 
from  the  letter,  by  the  nearest  approximation  to  it  ?  If 
an  additional  Representative  can  be  assigned  to  one  State 
beyond  its  relative  proportion  to  the  whole  population,  it 
is  equally  true,  that  it  can  be  assigned  to  all,  that  are  in 
a  similar  predicament.  If  a  fraction  admits  of  represent¬ 
ation  in  any  case,  what  prohibits  the  application  of  the 
rule  to  all  fractions  ?  The  only  constitutional  limitation 
seems  to  be,  that  no  State  shall  have  more  than  one  Rep¬ 
resentative  for  every  thirty  thousand  persons.  Subject 
to  this,  the  truest  rule  seems  to  be,  that  the  apportion¬ 
ment  ought  to  be  the  nearest  practical  approximation  to 
the  terms  of  the  Constitution  ;  and  the  rule  ought  to  be 
such,  that  it  shall  always  work  the  same  way  in  regard 
to  all  the  States,  and  be  as  little  open  to  cavil,  or  contro¬ 
versy,  or  abuse,  as  possible. 

§  84.  But  it  may  be  asked,  What  are  the  first  steps  to 
be  taken  in  order  to  arrive  at  a  constitutional  apportion¬ 
ment  ?  Plainly,  by  taking  the  aggregate  of  population 
in  all  the  States,  (according  to  the  constitutional  rule,) 
and  then  ascertain  the  relative  proportion  of  the  popula¬ 
tion  of  each  State  to  the  population  of  the  whole.  This 
is  necessarily  so  in  regard  to  direct  taxes  ;  and  there  is  no 
reason  to  say,  that  it  can,  or  ought  to  be  otherwise  in  re¬ 
gard  to  Representatives  ;  for  that  would  be  to  contravene 
the  very  injunctions  of  the  Constitution,  which  require  the 
like  rule  of  apportionment  in  each  case.  In  the  one,  the 
apportionment  may  be  run  down  below  unity  ;  in  the  other, 
it  cannot.  But  this  does  not  change  the  nature  of  the 
rule,  but  only  the  extent  of  its  application. 

§  85.  It  is  difficult  to  make  this  subject  clear  to  the 


house  of  representatives. 


61 


common  understanding,  without  introducing  aorae  tabular 
statements,  which  the  nature  of  this  work  seems  absolute¬ 
ly  to  prohibit.  But  it  may  be  stated,  as  an  historical 
fact,  that  in  every  apportionment  hitherto  made  of  Rep¬ 
resentatives,  whatever  has  been  the  number  of  inhabi¬ 
tants  assumed  as  the  ratio  to  govern  the  number  of  Rep¬ 
resentatives,  whether  thirty  thousand  or  any  higher  num¬ 
ber,  there  has  always  been  a  fraction  in  each  State  less 
than  that  number,  and  of  course  an  unrepresented  fraction. 
In  some  of  the  States,  the  fraction  has  been  very  small  ; 
in  others,  very  large  ;  and  in  others,  intermediate  numbers 
constantly  varying  from  each  other.  So  that,  in  fact,  there 
never  has  been  any  representation  of  each  State,  appor¬ 
tioned  in  exact  proportion  to  its  numbers,  as  the  Consti¬ 
tution  requires.  The  rule  adopted  has  been,  to  assume  a 
particular  number  of  inhabitants  as  the  ratio  to  give  a  sin¬ 
gle  Representative,  and  to  give  to  each  State  as  many 
Representatives,  as  its  population  contained  of  that  ratio 
or  particular  number ;  and  to  disregard  all  fractions  below 
that. 

§  S6.  There  remained  two  important  points  to  be  set¬ 
tled  in  regard  to  representation.  First,  that  each  State 
should  have  at  least  one  Representative  ;  for  otherwise,  it 
might  be  excluded  from  any  share  of  the  legislative  pow¬ 
er  in  one  branch  ;  and  secondly,  that  there  should  be 
some  limitation  of  the  number  of  Representatives  ;  for 
otherwise,  Congress  might  increase  the  House  to  an  unrea¬ 
sonable  size.  If  Congress  were  left  free  to  apportion  the 
Representatives  according  to  any  basis  of  numbers  they 
might  select,  half  the  States  in  the  Union  might  be  de¬ 
prived  of  Representatives,  if  the  whole  number  of  their 
inhabitants  fell  below  that  basis.  On  the  other  hand,  if 
the  number  selected  for  the  basis  were  small,  the  House 
might  become  too  unwieldy  for  business.  There  is, 
therefore,  great  wisdom  in  restricting  the  representation, 
so  that  there  shall  not  be  more  than  one  Representative 
for  every  thirty  thousand  inhabitants  in  a  State  ;  and  on 
the  other  hand,  by  a  positive  provision,  securing  to 
each  State  a  constitutional  representation  in  the  House,  by 
at  least  one  Representative,  however  small  its  own  popu- 

6  xiii. 


62  CONSTITUTION  OF  THE  UNITED  STATES. 

lation  may  be.  It  is  curious  to  remark,  that  it  was  origi¬ 
nally  thought  a  great  objection  to  the  Constitution,  that 
the  restriction  of  Representatives,  to  one  for  every  thirty 
thousand,  would  give  too  small  a  House  to  be  a  safe  de¬ 
pository  of  power  ;  and  that,  now  the  fear  is,  that  a  re¬ 
striction  to  double  that  number  will  hardly,  in  the  future, 
restrain  the  size  of  the  House  within  sufficiently  moderate 
limits,  for  the  purposes  of  an  efficient  and  enlightened 
legislation.  So  much  has  the  growth  of  the  country, 
under  the  auspices  of  the  national  Constitution,  outstrip¬ 
ped  the  most  sanguine  expectations  of  its  friends. 

§  87.  The  next  clause  is  ;  u  When  vacancies  happen 
in  the  representation  of  any  State,  the  executive  au¬ 
thority  thereof  shall  issue  writs  of  election  to  fill  such 
vacancies.”  It  is  obvious,  that  such  a  power  ought  to 
reside  in  some  public  functionary.  The  only  question  is, 
in  whom  it  can,  with  most  safety  and  convenience,  be  lodg¬ 
ed.  If  vested  in  the  general  government,  or  in  any 
department  of  it,  it  was  thought,  that  there  might  not  be 
as  strong  motives  for  an  immediate  exercise  of  the  pow¬ 
er,  or  as  thorough  a  knowledge  of  local  circumstances, 
to  guide  the  exercise  of  it  wisely,  as  if  vested  in  the 
State  government.  It  is,  therefore,  left  to  the  latter,  and 
to  that  branch  of  it,  the  State  Executive,  which  is  best 
fitted  to  exercise  it  with  promptitude  and  discretion. 
And  thus,  one  source  of  State  jealousy  is  effectually 
dried  up. 

§  88.  The  next  clause  is  ;  u  The  House  of  Repre¬ 
sentatives  shall  choose  their  Speaker,  and  other  offi¬ 
cers  ;  and  shall  have  the  sole  power  of  impeachment.” 
Each  of  these  privileges  is  of  great  practical  importance. 
In  Great  Britain,  the  Speaker  is  elected  by  the  House  of 
Commons  ;  but  he  must  be  approved  by  the  King  ;  and 
a  similar  power  of  approval  belonged  to  some  of  the  Gov¬ 
ernors  in  the  Colonies,  before  the  Revolution.  An  inde¬ 
pendent  and  unlimited  choice  by  the  House  of  Repre¬ 
sentatives  of  all  their  officers  is  every  way  desirable.  It 
secures,  on  the  part  of  their  officers,  a  more  efficient  re¬ 
sponsibility,  and  gives  to  the  House  a  more  complete 
authority  over  them.  It  avoids  all  the  dangers  and  in- 


HOUSE  OF  REPRESENTATIVES. 


63 


conveniences,  which  may  arise  from  differences  of  opin¬ 
ion  between  the  House  and  the  Executive,  in  periods  of 
high  party  excitement.  It  relieves  the  Executive  from  all 
the  embarrassments  of  opposing  the  popular  will,  and  the 
House  from  all  the  irritations  of  not  consulting  the  wishes 
of  the  Cabinet. 

§  89.  Next,  the  Power  of  Impeachment.  u  The 
House  of  Representatives  shall  have  the  sole  power  of  im¬ 
peachment  that  is,  the  right  to  present  a  written  accu¬ 
sation  against  persons  in  high  offices  and  trusts,  for  the 
purpose  of  bringing  them  to  trial  and  punishment  for  gross 
misconduct.  The  power,  and  the  mode  of  proceeding, 
are  borrowed  from  the  practice  of  England.  In  that 
Kingdom,  the  House  of  Commons  (which  answers  to  our 
House  of  Representatives)  has  the  right  to  present  arti¬ 
cles  of  impeachment  against  any  person,  for  any  gross 
misdemeanor,  before  the  House  of  Lords,  which  is  the 
court  of  the  highest  criminal  jurisdiction  in  the  realm. 
The  articles  of  impeachment,  are  a  sort  of  indictment ; 
and  the  House,  in  presenting  them,  acts  as  a  grand  jury, 
and  also  as  a  public  prosecutor.  The  great  object  of  this 
power  is,  to  bring  persons  to  justice,  who  are  so  elevated 
in  rank  or  influence,  that  there  is  danger,  that  they  might 
escape  punishment  before  the  ordinary  tribunals  ;  and  the 
exercise  of  the  power  is  usually  confined  to  political  or 
official  offences.  These  prosecutions  are,  therefore, 
conducted  by  the  Representatives  of  the  nation,  in  their 
public  capacity,  in  the  face  of  the  nation,  and  upon  a  re¬ 
sponsibility,  which  is  felt  and  reverenced  by  the  whole 
community.  We  shall  have  occasion,  hereafter,  to  con¬ 
sider  the  subject  of  impeachment  more  at  large,  in  anoth¬ 
er  place  ;  and  this  may  suffice  here,  as  an  explanation  of 
the  nature  and  objects  of  the  power.  No  one  can  well 
doubt,  that,  if  the  power  is  to  be  exercised  at  all,  by  any 
popular  body,  it  is  most  appropriately  confided  to  the 
representatives  of  the  people. 


64 


CONSTITUTION  OF  THE  UNITED  STATES. 


CHAPTER  X. 

The  Senate. 

§  90.  We  come  next  to  the  organization  and  powers 
of  the  Senate,  which  are  provided  for  in  the  third  section 
of  the  first  article  of  the  Constitution. 

§  91.  We  have  already  had  occasion  to  refer,  in  a 
brief  manner,  to  the  general  reasoning,  by  which  the  divis¬ 
ion  of  the  legislative  power  between  two  distinct  branch¬ 
es  has  been  justified  in  the  actual  organization  of  free 
governments.  And  here  seems  the  proper  place  to  enter 
somewhat  more  at  large,  into  the  reasonings,  by  which 
the  establishment  of  the  Senate  of  the  United  States  was 
supported  as  an  independent  branch  of  the  national  gov¬ 
ernment.  In  order  to  justify  the  existence  of  a  Senate 
with  co-ordinate  powers,  it  was  said,  first,  that  it  was  a 
misfortune  incident  to  republican  governments,  though  in 
a  less  degree  than  to  other  governments,  that  those,  who 
administer  it,  may  forget  their  obligations  to  their  constit¬ 
uents,  and  prove  unfaithful  to  their  important  trust.  In 
this  point  of  view,  a  Senate,  as  a  second  branch  of  the 
legislative  assembly,  distinct  from,  and  dividing  the  pow¬ 
er  with  a  first,  must  be  in  all  cases  a  salutary  check  on 
the  government.  It  doubles  the  security  to  the  people 
by  requiring  the  concurrence  of  two  distinct  bodies,  in 
schemes  of  usurpation  or  perfidy  ;  whereas  the  ambition 
or  corruption  of  one  would  otherwise  be  sufficient.  This 
precaution,  it  was  added,  was  founded  on  such  clear 
principles,  and  so  well  understood  in  the  United  States, 
that  it  was  superfluous  to  enlarge  on  it.  As  the  improb¬ 
ability  of  sinister  combinations  would  be  in  proportion  to 
the  dissimilarity  in  the  genius  of  the  two  bodies,  it  must 
be  politic  to  distinguish  them  from  each  other  by  every 
circumstance,  which  would  consist  with  a  due  harmony 
in  all  proper  measures,  and  with  the  genuine  principles 
of  republican  government. 


THE  SENATE. 


65 


§  92.  Secondly.  The  necessity  of  a  Senate  was 
not  less  indicated  by  the  propensity  of  all  single  and  nu¬ 
merous  assemblies  to  yield  to  the  impulse  of  sudden  and 
violent  passions,  and  to  be  seduced  by  factious  leaders 
into  intemperate  and  pernicious  resolutions.  Examples 
of  this  sort  might  be  cited  without  number,  and  from  pro¬ 
ceedings  in  the  United  States,  as  well  as  from  the  history 
of  other  nations.  A  body,  which  is  to  correct  this  infirm¬ 
ity,  ought  to  be  free  from  it,  and  consequently  ought  to 
be  less  numerous,  and  to  possess  a  due  degree  of  firm¬ 
ness,  and  a  proper  tenure  of  office. 

§  93.  Thirdly.  Another  defect,  to  be  supplied  by 
a  Senate,  lay  in  the  want  of  a  due  acquaintance  with  the 
objects  and  principles  of  legislation.  A  good  government 
implies  two  things  ;  first,  fidelity  to  the  objects  of  the  gov¬ 
ernment  ;  secondly,  a  knowledge  of  the  means,  by  which 
those  objects  can  be  best  attained.  It  was  suggested, 
that  in  the  American  governments  too  little  attention  had 
been  paid  to  the  last  ;  and  that  the  establishment  of  a 
Senate,  upon  a  proper  basis,  would  greatly  increase  the 
chances  of  fidelity,  and  of  wise  and  safe  legislation.  What 
(it  was  asked)  are  all  the  repealing,  explaining,  and 
amending  laws,  which  fill  and  disgrace  our  voluminous 
codes,  but  so  many  monuments  of  deficient  wisdom  ;  so 
many  impeachments  exhibited  by  each  succeeding,  against 
each  preceding,  session  ;  so  many  admonitions  to  the  peo¬ 
ple  of  the  value  of  those  aids,  which  may  be  expected 
from  a  well-constituted  Senate  ? 

§  94.  Fourthly.  Such  a  body  would  prevent  too  great 
a  mutability  in  the  public  councils,  arising  from  a  rapid 
succession  of  new  members  ;  for,  from  a  change  of  men, 
there  must  proceed  a  change  of  opinions,  and  from  a 
change  of  opinions,  a  change  of  measures.  Such  insta¬ 
bility  in  legislation  has  a  tendency  to  diminish  respect  and 
confidence  abroad,  as  well  as  safety  and  prosperity  at 
home.  It  has  a  tendency  to  damp  the  ardor  of  industry 
and  enterprise  ;  to  diminish  the  security  of  property  ;  and 
to  impair  the  reverence  and  attachment,  which  are  indis¬ 
pensable  to  the  permanence  of  every  political  institu¬ 
tion. 


6* 


66  CONSTITUTION  OF  THE  UNITED  STATES. 

§  95.  Fifthly.  Another  ground,  illustrating  the  utility 
of  a  Senate,  was  suggested  to  be  the  keeping  alive  of  a 
due  sense  of  national  character.  In  respect  to  foreign 
nations,  this  was  of  vital  importance  ;  for  in  our  intercourse 
with  them,  if  a  scrupulous  and  uniform  adherence  to  just 
principles  was  not  observed,  it  must  subject  us  to  many 
embarrassments  and  collisions.  It  is  difficult  to  impress 
upon  a  single  body,  which  is  numerous  and  changeable,  a 
deep  sense  of  the  value  of  national  character.  A  small 
portion  of  the  praise,  or  blame,  of  any  particular  measure, 
can  fall  to  the  lot  of  any  particular  person  ;  and  the  peri¬ 
od  of  office  is  so  short,  that  little  responsibility  is  felt,  and 
little  pride  is  indulged,  as  to  the  course  of  the  govern¬ 
ment. 

§  96.  Sixthly.  It  was  urged,  that,  paradoxical  as  it 
might  seem,  the  want,  in  some  important  cases,  of  a  due 
responsibility  in  the  government  arises  from  that  very  fre¬ 
quency  of  elections,  which,  in  other  cases,  produces  such 
responsibility.  In  order  to  be  reasonable,  responsibility 
must  be  limited  to  objects  within  the  power  of  the  respon¬ 
sible  party  ;  and  in  order  to  be  effectual,  it  must  relate  to 
operations  of  that  power,  of  which  a  ready  and  proper 
judgement  can  be  formed  by  the  constituents.  Some 
measures  have  singly  an  immediate  and  sensible  operation  ; 
others  again  depend  on  a  succession  of  well-connected 
schemes,  and  have  a  gradual,  and  perhaps  unobserved 
operation.  If,  therefore,  there  be  but  one  Assembly, 
chosen  for  a  short  period,  it  will  be  difficult  to  keep  up 
the  train  of  proper  measures,  or  to  preserve  the  proper 
connexion  between  the  past  and  the  future.  And  the 
more  numerous  the  body,  and  the  more  changeable  its 
component  parts,  the  more  difficult  it  will  be  to  preserve 
the  personal  responsibility,  as  well  as  the  uniform  action, 
of  the  successive  members,  to  the  great  objects  of  the 
public  welfare. 

§  97.  Lastly.  A  Senate,  duly  constituted,  would  not 
only  operate  as  a  salutary  check  upon  the  Representatives, 
but  occasionally  upon  the  people  themselves,  against  their 
own  temporary  delusions  and  errors.  The  cool,  deliber¬ 
ate  sense  of  the  community  ought,  in  all  governments,  and 


THE  SENATE. 


67 


actually  will,  in  all  free  governments,  ultimately  prevail 
over  the  views  of  their  rulers.  But  there  are  particular 
moments  in  public  affairs,  when  the  people,  stimulated  by 
some  irregular  passion,  or  some  illicit  advantage,  or  mis¬ 
led  by  the  artful  misrepresentations  of  interested  men,  may 
call  for  measures,  which  they  themselves  will  afterwards 
be  the  most  ready  to  lament  and  condemn.  In  these 
critical  moments,  how  salutary  will  be  the  interference  of 
a  body  of  respectable  citizens,  chosen  without  reference 
to  the  exciting  cause,  to  check  the  misguided  career  of 
public  opinion,  and  to  suspend  the  blow,  until  reason, 
justice,  and  truth  can  regain  their  authority  over  the  pub¬ 
lic  mind.  It  was  thought  to  add  great  weight  to  all  these 
considerations,  that  history  has  informed  us  of  no  long- 
lived  republic,  which  had  not  a  senate.  Sparta,  Rome, 
Carthage  were,  in  fact,  the  only  states,  to  whom  that 
character  can  be  applied. 

§  98.  It  will  be  observed,  that  some  parts  of  the  fore¬ 
going  reasoning  apply  to  the  fundamental  importance  of 
an  actual  division  of  the  legislative  power  ;  and  other 
parts  to  the  true  principles,  upon  which  that  division 
should  be  subsequently  organized,  in  order  to  give  full 
effect  to  the  constitutional  check.  Some  parts  go  to  show 
the  value  of  a  Senate  ;  and  others,  what  should  be  its 
structure,  in  order  to  insure  wisdom,  experience,  fidelity, 
and  dignity  in  its  members.  All  of  it,  however,  instructs 
us,  that,  in  order  to  give  it  fair  play  and  influence,  as  a 
co-ordinate  branch  of  government,  it  ought  to  be  less  nu¬ 
merous,  more  select,  and  more  durable,  than  the  other 
branch  ;  and  be  chosen  in  a  manner,  which  should  com¬ 
bine,  and  represent,  different  interests,  with  a  varied  force. 
How  far  these  objects  are  attained  by  the  Constitution, 
will  be  better  seen,  when  the  details  belonging  to  each 
department  are  successively  examined. 

§  99.  The  first  clause  of  the  third  section  is — u  The 
Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  State,  chosen  by  the  Legislature 
thereof  for  six  years  ;  and  each  Senator  shall  have  one 
vote.” 

§  100.  First,  the  nature  of  the  representation  and  vote 


68 


CONSTITUTION  OF  THE  UNITED  STATES. 


in  the  Senate.  Each  State  is  entitled  to  two  Senators  ; 
and  each  Senator  is  entitled  to  one  vote.  Of  course, 
there  is  a  perfect  equality  of  representation  and  vote  of 
the  States  in  the  Senate.  In  this  respect  it  forms  a 
marked  contrast  to  the  House  of  Representatives.  In 
the  latter,  the  representation  is  in  proportion  to  the  popi*- 
lation  of  each  State,  upon  a  given  basis  ;  in  the  former, 
each  State,  whether  it  be  great  or  be  small,  is,  in  its  po¬ 
litical  capacity,  represented  upon  the  footing  of  equality 
with  every  other,  as  it  would  be  in  a  Congress  of  Ambas¬ 
sadors,  or  in  an  Assembly  of  Peers.  The  only  important 
difference  between  the  vote  in  the  Senate,  and  that  in  the 
old  Continental  Congress  under  the  Confederation,  is,  that 
in  the  latter,  the  vote  was  by  States,  each  having  but  one 
vote,  whereas,  in  the  Senate,  each  Senator  has  one  vote. 
So  that,  although  the  Senators  represent  States,  they 
vote  as  individuals  ;  thus  combining  the  two  elements  of 
individual  opinion,  and  of  State  representation.  A  ma¬ 
jority  of  the  Senators  must  concur  in  every  vote  ;  but 
the  vote  need  not  be  that  of  a  majority  of  the  States, 
since  the  Senators  from  the  same  State,  may  vote  on 
different  sides  of  the  same  question.  The  Senators  from 
fifteen  States  may  divide  in  their  votes  ;  and  those  from 
eleven,  may  concur  in  their  votes,  and  thus  give  a  deci¬ 
sive  majority. 

§  101.  It  is  obvious,  that  this  arrangement  could  only  • 
arise  from  a  compromise  between  the  great  and  the  small 
States,  founded  upon  a  spirit  of  amity,  and  mutual  defer¬ 
ence  and  concession,  which  the  peculiarity  of  situation 
of  the  United  States  rendered  indispensable.  There  was, 
for  a  long  time,  a  very  animated  struggle  in  the  Conven¬ 
tion,  between  the  great  and  the  small  States,  on  this  sub¬ 
ject  ;  the  latter  contending  for  an  equality  of  representa¬ 
tion  in  each  branch  of  the  Legislature  ;  the  former  for  a 
representation  in  each,  proportionate  to  its  population  and 
importance.  In  the  discussions,  the  States  were  so  nearly 
balanced,  that  their  union  in  any  plan  of  government, 
which  should  provide  for  a  perfect  equality,  or  an  inequal¬ 
ity,  of  representation  in  both  Houses,  became  utterly  hope¬ 
less.  A  compromise  became  indispensable.  The  small 


THE  SENATE. 


69 


States  yielded  up  an  equality  of  representation  in  the 
House  of  Representatives,  and  the  great  States,  in  like 
manner,  conceded  an  equality  in  the  Senate.  This  ar¬ 
rangement,  so  vital  to  the  peace  of  the  Union,  and  to  the 
preservation  of  the  separate  existence  of  the  States,  is,  at 
the  same  time,  full  of  wisdom,  and  sound  political  policy. 
It  introduces,  and  perpetuates,  in  the  different  branches 
of  the  Legislature,  different  elements,  which  will  make 
the  theoretical  check,  contemplated  by  the  division  of  the 
legislative  power,  more  efficient  and  constant  in  its  opera¬ 
tion.  The  interests,  passions,  and  prejudices  of  a  par¬ 
ticular  representative  district  may  thus  be  controlled  by 
the  influence  of  a  whole  State  ;  the  like  interests,  pas¬ 
sions,  and  prejudices  of  a  State,  or  of  a  majority  of  the 
States,  may  thus  be  controlled  by  the  voice  of  a  majority 
of  the  people  of  the  Union. 

§  102.  Secondly,  the  mode  of  choosing  Senators. 
They  are  to  be  chosen  by  the  Legislature  of  each  State. 
This  mode  has  a  natural  tendency  to  increase  the  just 
operation  of  the  check,  to  which  we  have  already  alluded. 
The  people  of  the  States  directly  choose  the  Representa¬ 
tives  ;  the  Legislature,  whose  votes  are  variously  com¬ 
pounded,  and  whose  mode  of  election  is  different  in  dif¬ 
ferent  States,  directly  choose  the  Senators.  So  that  it 
is  impossible,  that  exactly  the  same  influences,  interests, 
and  feelings,  should  prevail  in  the  same  proportions  in 
each  branch.  Three  schemes  were  presented  in  the 
Convention  ;  one  was,  a  choice  directly  by  the  people 
of  the  States  ;  another  was,  a  choice  by  the  national 
House  of  Representatives  ;  and  the  third  was,  that  which 
aow  exists.  Upon  mature  deliberation,  the  last  was 
thought  to  possess  a  decided  preference  over  either  of  the 
other  two.  It  was  recommended  by  the  double  advantage 
of  favoring  a  select  appointment,  and  of  giving  to  the 
State  governments  such  an  agency  in  the  formation  of  the 
national  government,  as  might  secure  a  due  authority  to 
the  former,  and  may  well  serve  as  a  connecting  link 
between  the  two  systems.  Our  past  experience  has  fully 
justified  the  wisdom  of  the  choice. 

§  103.  The  Constitution  has  not  provided  for  the  man- 


70 


CONSTITUTION  OF  THE  UNITED  STATES. 


ner,  in  which  the  choice  shall  be  made  by  the  State  Legis¬ 
latures,  whether  by  a  joint  vote,  or  by  a  concurrent  vote  ; 
the  former  is,  where  both  branches  form  one  assembly, 
and  give  a  united  vote  numerically  ;  the  latter  is,  where 
each  branch  gives  a  separate  and  independent  vote. 
As  each  of  the  State  Legislatures  now  consists  of  tw’O 
branches,  this  is  a  very  important  practical  question. 
Generally,  but  not  universally,  the  choice  of  Senators  is 
made  by  a  concurrent  vote.  Another  question  might  be 
suggested,  whether  theTCxecutive  constitutes  a  part  of  the 
Legislature  for  such  a  purpose,  in  cases  where  the  State 
constitution  gives  him  a  qualified'  negative  upon  the  laws. 
But  this  has  been  silehtly  and  universally  settled  against 
the  executive  participation  in  the  appointment. 

§104.  Thirdly,  the  number  of  Senators.  Each  State 
is  entitled  to  two  Senators.  To  insure  competent  knowl¬ 
edge  and  ability  to  discharge  all  the  functions  intrusted 
to  the  Senate,  and,  at  the  same  time,  to  give  promptitude 
and  efficiency  to  their  acts,  the  number  should*  not  be  un¬ 
reasonably  large  or  small.  The  numbed  should  be  suffi¬ 
ciently  large  to  insure  a  sufficient  variety  of  talents  and 
experience  and  practical  skill  for.  the  just  discharge  of  ah 
the  duties  of  that  important  branch  of  the  Legislature. 
A  very  small  body  also  is  more  easily  overawed  and 
intimidated  by  external  influences,  than  one  of  a  reason¬ 
able  size,  embracing  weight  of  character,  and  dignity  of 
talents.  Numbers,  alone,  in  many  cases,  confer  power, 
and  encourage  firmness.  If  the  number  of  the  Senate  were 
confined  to  one  for  each  State,  there  would  be  danger, 
that  it  might  be  too  small  for  a  comprehensive  knowledge 
and  diligence  in  all  the  business  devolved  upon  the  body. 
And  besides  ;  in  such  a  case,  the  illness,  or  accidental 
absence  of  a  Senator  might  deprive  a  State  of  its  vote 
upon  an  important  question,  or  of  its  influence  in  an  inter¬ 
esting  debate.  If,  on  the  other  hand,  the  number  were 
very  large,  the  Senate  might  become  Unwieldy,  and  want 
despatch,  and  due  responsibility.  It  could  hardly  exer¬ 
cise  due  deliberation  in  some  functions  connected  with 
executive  duties,  which  might,  at  the  same  time,  require 
prompt  action.  If  any  number  beyond  one  be  proper % 


THE  SENATE. 


71 


two  seems  as  convenient  a  number  as  any,  which  can  be 
devised.  The  Senate,  upon  its  present  organization,  can¬ 
not  probably  ever  become  too  large  or  too  small  for  the 
fit  discharge  of  all  its  functions.  The  benefit  is  retained, 
of  consultation,  and  mutual  interchange  of  opinion  between 
the  members  from  the  same  State  ;  and  the  number  is 
sufficient  to  guard  against  any  undue  influence  over  it  by 
the  more  popular  branch  of  the  Legislature. 

§  105.  Fourthly,  the  term  of  service  of  the  Senators. 
It  is  for  six  years,  although,  as  we  shall  presently  see,  one 
third  of  the  members  is  changed  every  two  years.  What 
is  the  proper  duration  of  the  office,  is  qertainly  a  matter, 
upon  which  different  minds  may*  arrive  at  different  con¬ 
clusions.  The  term  should  have  reference  to  the  nature 
and  extent  of  the  duties  to  be  performed,  the  experience 
to  be  required,  the  independence  to  be  secured,  and  the 
objects  to  be  attained.  A  very  short  duration  of  office, 
diminishes  responsibility,  and  energy,  and  public  spirit, 
and  firmness  of  action,  by  diminishing  the  motives  to 
great  efforts,  an'd  '  also,  by  diminishing  the  means  of  ma¬ 
turing,  and  carrying  into  effect,  wise  measures.  The 
Senate  has  various  highly-important  functions  to  perform, 
besides  its  legislative  duties.  It  partakes  of  the  execu¬ 
tive  power  of  appointment  to  office,  of  andnhe  ratification 
of  public  treaties.  Tp  perform  these  functions  worthily, 
the  members  should  enjoy  public  confidence  at  home  and 
abroad  ;  and  they  should  be  beyond  the  reach  of  the  sud¬ 
den  impulses  of  domestic  factions,  as  well  as  of  foreign 
influences.  They  should  not  be  subject  to  intimidation 
by  the  mere  seekers  of  office  ;  nor  should  they  be  deemed 
by  foreign  nations',  to  have  no  permanent  weight  in  the 
administration  of  the  government.  They  should  be  able,  on 
the  one  hand,  to  guard  the  States  against  usurpations  of 
authority  on  the  part  of  the  National  Government  ;  and  on 
the  other  hand,  to  guard  the  people  against  the  unconsti¬ 
tutional  projects  of  selfish  demagogues.  They  should 
have  the  habits  of  business,  and  the  large  experience  in 
the  affairs  of  government,  derived  from  a  practical  con¬ 
cern  in  them  for  a  considerable  period.  They  should  be 
chosen  for  a  longer  period  than  the  House  of  Represen- 


72  CONSTITUTION  OF  THE  UNITED  STATES. 

tatives,  in  order  to  prevent  sudden  and  total  changes  at 
the  same  period  of  all  the  functionaries  of  the  government, 
which  would  necessarily  encourage  instability  in  the  pub¬ 
lic  councils,  and  stimulate  political  agitations  and  rivalries. 
In  all  these  respects,  the  term  of  office  of  the  Senators 
seems  admirably  well  adapted  to  the  purposes  of  an  effi¬ 
cient,  and. yet  of  a  responsible  body.  It  secures  the 
requisite  qualifications  of  skill,  experience,  information, 
and  independence.  It  prevents  any  sudden  changes  in 
the  public  policy.  It  induces  foreign  nations  to  treat 
with  the  government  with  more  confidence,  from  the  con¬ 
sciousness  of  the  permanence  of  its  councils.  It  com¬ 
mands  a  respect  at  home,  which  enables  it  to  resist  any 
undue  inroads  of  the  popular  branch  ;  and,  at  the  same 
time,  its  duration  is  not  so  long,  as  to  take  away  a  pres¬ 
sing  sense  of  responsibility  both  to  the  people,  and  to  the 
States. 

§  106.  But,  in  order  to  quiet  the  last  lingering  scruples 
of  jealousy  on  this  head,  the  next,  clause  of  the  Constitu¬ 
tion  provides  for  a  change  of  one  third  of  the  members 
every  two  years.  It  declares, — u  Immediately  after  they 
(the  Senators)  shall  be  assembled,  in  consequence  of  the 
first  election,  they  shall  be  divided,  as  equally  as  may  be, 
into  three  classes.  The  seats  of  the  Senators  of  the  first 
class,  shall  be  vacated  at  the  expiration  of  every  second 
year  ;  of  the  second  class,  at  the  expiration  of  every  fourth 
year  ;  and  of  the  third  class,  at  the  expiration  of  every 
sixth  year  ;  so  that  one  third  may  be  chosen  every  second 
year.”  Thus,  the  whole  body  is  gradually  changed  in  the 
course  of  the  six  years,  always  retaining  a  large  portion 
of  experience,  and  yet  incapable  of  combining  its  mem¬ 
bers  together  for  any  sinister  purposes.  No  person 
would  probably  propose  a  less  duration  of  office  for  the 
Senators,  than  double  the  period  of  that  of  the  members 
of  the  House.  In  effect,  this  provision  changes,  within 
the  same  period,  the  composition  of  two  thirds  of  the 
body. 

§  107.  As  vacancies  may  occur  in  the  Senate  during 
the  recess  of  the  State  Legislatures,  it  became  indispen¬ 
sable  to  provide  for  that  exigency,  in  order  to  preserve 


the  Senate.  73 

the  full  right  of  representation  of  each  State  in  that  body. 
Accordingly,  the  same  clause  declares— And  if  any 
vacancies  happen,  by  resignation,  or  otherwise,  during  the 
recess  of  the  Legislature  of  any  State,  the  Executive 
thereof  may  make  temporary  appointments,  until  the  next 
meeting  of  the  Legislature,  which  shall  then  fill  such  va¬ 
cancies.”  This  mode  seems  as  unexceptionable,  as  any 
which  could  be  adopted.  It  enables  the  Executive  of 
the  State  to  appoint  a  temporary  Senator,  when  the 
State  Legislature  is  not  in  session.  One  of  three  courses, 
only,  seemed  open  ;  either  to  allow  the  vacancy  to  remain 
unfilled,  which  would  deprive  the  State  of  its  due  vote  ; 
or  to  allow  the  State  Legislature  prospectively  to  pro¬ 
vide  for  the  vacancy  by  a  contingent  appointment,  which 
might  be  liable  to  some  objections  of  a  different  charac¬ 
ter  ;  or  to  confide  a  temporary  appointment  to  the  high¬ 
est  State  functionary,  who  might  well  be  presumed  to 
enjoy  the  public  confidence,  and  be  devoted  to  the  pub¬ 
lic  interest,  and  to  have  very  strong  motives  to  make  a 
judicious  appointment. 

§  108.  We  next  come  to  the  qualifications  of  Sena¬ 
tors.  No  person  shall  be  a  Senator,  who  shall  not  have 
attained  the  age  of  thirty  years,  and  been  nine  years  a 
citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State,  for  which  he  shall 
be  chosen.”  As  the  nature  of  the  duties  of  a  Senator 
requires  more  experience,  knowledge,  and  stability  of 
character,  than  those  of  a  Representative,  the  qualifica¬ 
tion  of  age  is  accordingly  raised.  A  person  may  be  a 
Representative,  at  twenty-five  years  ;  but  he  cannot  be  a 
Senator,  until  thirty  years.  Citizenship,  also,  is  required, 
the  propriety  of  which  qualification  cannot  well  be  doubt¬ 
ed.  The  term  of  citizenship  of  a  Representative  is  seven 
years  ;  that  of  a  Senator  is  nine  years.  The  reason,  for 
increasing  the  term,  in  the  latter  case,  is,  the  direct  con¬ 
nection  of  the  Senate  with  foreign  nations,  in  the  appoint¬ 
ment  of  ambassadors,  and  in  the  formation  of  treaties. 
This  prolonged  term  may  well  be  required  of  a  foreigner, 
not  only  to  give  him  a  more  thorough  knowledge  of  the 
interests  of  his  adopted  country  ;  but  also  to  wean  him 

7  xiii. 


74 


CONSTITUTION  OF  THE  UNITED  STATES. 


more  effectually  from  those  of  his  native  country.  The 
next  qualification,  is,  inhabitancy  in  the  State  ;  and  the 
propriety  of  this,  is  almost  self-evident,  since  an  inhabit¬ 
ant  may  not  only  be  presumed  to  be  better  acquainted 
with  the  local  interests,  and  wants,  and  pursuits,  of  the 
State  ;  but  may,  also,  well  be  deemed  to  feel  a  higher 
degree  of  responsibility  to  the  State,  than  any  stranger. 
He  will,  also,  personally,  share  more  fully  in  the  effects  of 
all  measures,  touching  the  sovereignty,  rights,  and  influ¬ 
ence,  of  the  State.  The  only  surprise,  is,  that  provision 
is  not  made  for  his  ceasing  to  represent  the  State,  in  the 
Senate,  as  soon  as  he  should  cease  to  be  an  inhabitant  of 
the  State. 

§  109.  In  concluding  this  topic,  it  is  proper  to  re¬ 
mark,  that  no  qualification,  whatever,  as  to  property,  is 
required  in  regard  to  Senators,  any  more  than  in  regard 
to  Representatives.  Merit  and  talent  have,  therefore,  the 
freest  access  open  to  them  into  each  branch  of  the  Legis¬ 
lature.  Under  such  circumstances,  if  the  choice  of  the 
people  is  but  directed  by  a  suitable  sobriety  of  judgement, 
the  Senate  cannot  fail  of  being  distinguished  for  wisdom, 
for  learning,  for  exalted  patriotism,  for  incorruptible  in¬ 
tegrity,  and  for  inflexible  independence. 

§  110.  The  next  clause  respects  the  person  who 
shall  preside  in  the  deliberations  of  the  Senate. — u  The 
Vice  President  of  the  United  States  shall  be  President 
of  the  Senate,  but  shall  have  no  vote,  unless  they  be 
equally  divided.  The  Senate  shall  choose  their  other 
officers,  and  also  a  President  pro  tempore,  in  the  ab¬ 
sence  of  the  Vice  President,  or  when  he  shall  exercise 
the  office  of  President  of  the  United  States.” 

§  111.  The  propriety  of  creating  the  office  of  Vice 
President  will  be  reserved  for  future  consideration,  when 
the  organization  of  the  executive  department  shall  come 
under  review.  The  reasons,  why  he  is  authorized  to. 
preside  in  the  Senate,  belong  appropriately  to  this  place. 
The  strong  motive  for  this  arrangement  undoubtedly  arose 
from  the  desire  to  moderate  State  jealousy  and  to  preserve 
State  equality  in  the  Senate.  If  the  presiding  officer  of 
the  Senate  were  to  be  chosen  exclusively  from  its  own 


THE  SENATE. 


75 


members,  it  was  supposed,  that  the  State,  upon  which 
the  choice  might  fail,  might  possess  either  more  or  less, 
than  its  due  share  of  influence.  If  he  were  not  allowed 
to  vote,  except  upon  an  equal  division  of  the  Senate,  then 
the  State  would  be  deprived  of  his  vote  ;  if  he  were  en¬ 
titled  to  vote,  and  also,  in  such  cases,  to  give  a  casting 
vote,  then  the  State  would,  in  effect,  possess  a  double 
vote.  If  he  could  only  vote  as  a  member,  then,  in  case 
of  an  equality  of  votes,  much  inconvenience  might  arise 
from  the  indecision  of  the  Senate.  It  might  give  rise  to 
dangerous  feuds,  or  intrigues,  and  create  State,  or  na¬ 
tional  agitations.  It  would  be  far  better,  in  such  an 
equality  of  votes,  to  refer  the  decision  to  a  common  arbi¬ 
ter,  like  the  Vice  President,  chosen  by  a  vote  of  the 
'States,  and  therefore  to  be  deemed  the  representative  of 
all  of  them.  The  permanent  appointment  of  any  one  of 
the  Senators,  as  President  of  the  Senate,  might  give 
him  an  undue  influence  and  control  over  measures  during 
his  official  term.  An  appointment  for  a  single  session, 
only,  would  subject  the  body  to  constant  agitations,  and 
intrigues,  incompatible  with  its  own  dignity  and  conveni¬ 
ence,  and  might  introduce  irregularities,  unfavorable  to  an 
impartial  course  of  proceedings,  founded  upon  experience, 
and  an  accurate  knowledge  of  the  duties  of  the  office. 
These  views  appear  to  have  had  great  weight  in  the 
Convention,  and  have  been  found  entirely  satisfactory  to 
the  people.  The  appointment  of  the  Vice  President  to 
preside  in  the  Senate  has  been  greatly  conducive  to  the 
harmony  of  the  States  and  the  dignity  of  the  General  Gov¬ 
ernment.  As  the  Senate  possess  the  power  to  make 
rules  to  regulate  their  own  proceedings,  there  is  little 
danger,  that  there  ean  ever  arise  any  serious  abuse  of  the 
presiding  power.  The  danger,  if  any,  is  rather  the 
other  way,  that  the  presiding  power  will  be  silently  weak¬ 
ened  or  openly  surrendered,  so  as  to  leave  to  the  office 
little  more  than  the  barren  honor  of  the  place,  without  in¬ 
fluence,  and  without  action. 

§  112.  The  propriety  of  intrusting  the  Senate  with 
the  choice  of  its  other  officers,  and  also  of  a  President 
pro  tempore  in  the  absence  of  the  Vice  President,  or 


76  CONSTITUTION  OF  THE  UNITED  STATES, 

when  he  exercises  the  office  of  President,  seems  never 
to  have  been  questioned  ;  and  indeed  is  so  obvious,  that 
it  is  wholly  unnecessary  to  vindicate  it.  Confidence  be¬ 
tween  the  Senate  and  its  officers,  and  the  power  to  make 
a  suitable  choice,  and  to  secure  a  suitable  responsibility 
for  the  faithful  discharge  of  the  duties  of  office,  are  so 
indispensable  for  the  public  good,  that  the  provision  will 
command  universal  assent,  as  soon  as  it  is  mentioned.  It 
has  grown  into  a  general  practice  for  the  Vice  President 
to  vacate  the  Senatorial  chair  a  short  time  before  the 
termination  of  each  session,  in  order  to  enable  the  Senate 
to  choose  a  President  pro  tempore,  who  might  already 
be  in  office,  if  the  Vice  President,  in  the  recess,  should  be 
called  to  the  chair  of  State.  The  practice  is  founded  in 
wisdom  and  sound  policy,  as  it  immediately  provides  for 
an  exigency,  which  may  well  be  expected  to  occur  at 
any  time  ;  and  prevents  the  choice  from  being  influenced 
by  temporary  excitements  or  intrigues,  arising  from  the 
actual  existence  of  a  vacancy.  As  it  is  useful  in  peace 
to  provide  for  war  ;  so  it  is  likewise  useful  in  times  of 
profound  tranquillity  to  provide  for  political  agitations,, 
which  may  disturb  the  public  harmony. 


CHAPTER  XL 
Impeachments.. 

§  113.  The  next  clause  respects  the  judicial  power 
of  the  Senate  to  try  impeachments.  u  The  Senate 
shall  have  the  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath,  or 
affirmation.  When  the  President  of  the  United  States 
is  tried,  the  Chief  Justice  shall  preside  ;  and  no  person 
shall  be  convicted,  without  the  concurrence  of  two  thirds 
of  the  members  present.”  The  great  objects  to  be  at¬ 
tained  in  the  selection  of  a  tribunal  for  the  trial  of  im¬ 
peachments,  are  impartiality,  integrity,  intelligence,  and 
independence.  If  either  of  these  qualities  is  wanting,, 


IMPEACHMENTS. 


77 


the  trial  is  essentially  defective.  To  insure  impartiality, 
the  body  must  be,  in  some  degree,  removed  from  popular 
power  and  passions,  from  the  influence  of  sectional  pre¬ 
judices,  and  from  the  still  more  dangerous  influence  of 
party  spirit.  To  secure  integrity,  there  must  be  a  lofty 
sense  of  duty,  and  a  deep  responsibility  to  God,  as  well 
as  to  future  ages.  To  secure  intelligence,  there  must  be 
age,  experience,  and  high  intellectual  powers  and  attain¬ 
ments.  To  secure  independence,  there  must  be  numbers, 
as  wTell  as  talents,  and  a  confidence,  resulting  from  per¬ 
manency  of  place,  dignity  of  station,  and  consciousness 
of  patriotism.  The  Senate,  from  its  very  organization, 
must  be  presumed  to  possess  all  these  qualities  in  a  high 
degree,  and,  certainly,  in  a  degree  not  surpassed  by  any 
other  political  body  in  the  country.  If  it  should  be 
asked,  why  the  power  to  try  impeachments  might  not 
have  been  confided  to  a  court  of  law  of  the  highest  grade, 
it  may  be  answered,  that  such  a  tribunal  is  not,  on  various 
accounts,  so  fit  for  the  purpose.  In  the  first  place,  the 
offences  to  be  tried  are  generally  of  a  political  character, 
such  as  a  court  of  law  is  not  ordinarily  accustomed  to 
examine,  and  such  as  its  common  functions  exclude. 
The  Senators,  on  the  contrary,  necessarily  become  fa¬ 
miliar  with  such  subjects.  In  the  next  place,  the  strict 
course  of  proceedings,  in  courts  of  law,  is  ill  adapted  to 
the  searching  out  of  political  delinquencies.  In  the  next 
place,  such  political  functions,  are  in  no  small  degree 
incompatible  with  the  due  discharge  of  other  judicial 
duties.  They  have  a  tendency  to  involve  the  Judges  in 
party  interests  and  party  contests,  and  thereby  to  with¬ 
draw  their  minds  from  those  studies  and  habits,  which 
are  most  important,  in  the  ordinary  administration  of  jus¬ 
tice,  to  secure  independence  and  impartiality.  In  the 
next  place,  the  Judges  are  themselves  appointed  by  the 
Executive,  and  may  be  called  upon  to  try  cases,  in  which 
he,  or  some  officer  enjoying  his  confidence,  and  acting 
under  his  orders,  is  the  party  impeached.  In  the  last 
place,  a  Judge  may  be  the  very  party  impeached  ;  and, 
under  such  circumstances,  a  court  of  law  may  be  pre¬ 
sumed  to  labor  under  as  strong  feelings  and  sympathies 

7# 


78  CONSTITUTION  OF  THE  UNITED  STATES. 

for  the  accused,  as  any  other  body.  It  could  never  be 
desirable  to  call  upon  the  Supreme  Court  of  the  nation  to 
try  an  impeachment  of  one  of  its  own  members  for  an 
official  misdemeanor.  So  that,  to  say  the  least,  the  tri¬ 
bunal  selected  by  the  Constitution  is  as  unobjectionable, 
as  any,  which  could  be  pointed  out. 

§  114.  The  mode  of  trial  is  also  provided  for.  The 
Senate,  when  sitting  as  a  Court  of  Impeachment,  u  shall 
be  on  oath  or  affirmation.”  This  is  required  in  all  cases 
of  trials  in  the  common  courts  of  law.  Jurymen,  as 
well  as  Judges,  are  always  under  oath  or  affirmation,  in 
the  discharge  of  their  respective  duties.  It  is  a  sanction, 
appealing  to  their  consciences,  and  calling  upon  them  to 
reflect  well  upon  their  duties.  The  provision  was  deem¬ 
ed  the  more  necessary,  because  in  trials  of  impeachment 
in  England,  the  House  of  Lords  (which  is  the  High 
Court  of  Impeachment)  is  not  under  oath  ;  but  each 
Peer  makes  a  declaration  simply  upon  his  honor  ;  al¬ 
though  if  he  were  a  witness  in  any  common  trial,  he 
must  give  his  testimony  on  oath. 

§  115.  The  next  provision  is;  u  When  the  Presi¬ 
dent  of  the  United  States  is  tried,  the  Chief  Justice  shall 
preside.”  The  object  of  this  clause  is,  to  preclude  the 
Vice  President,  who  might  be  supposed  to  have  a  natural 
desire  to  succeed  to  the  office  of  President,  from  being 
instrumental,  or  having  any  influence,  in  procuring  a  con¬ 
viction  of  the  Chief  Magistrate.  Under  such  circum¬ 
stances,  who  could  be  deemed  more  suitable  to  preside 
at  the  trial,  than  the  highest  Judicial  magistrate  of  the  na¬ 
tion.  His  impartiality  and  independence  would  be  as 
little  liable  to  suspicion,  as  those  of  any  other  person  in 
the  country.  The  dignity  of  his  station  might  well  be 
deemed  an  adequate  pledge  for  his  possession  of  the  high¬ 
est  accomplishments  ;  and  his  various  learning  and  great 
experience  in  the  law,  might  well  be  presumed  to  enable  him 
to  give  essential  assistance  to  the  Senate,  not  only  in  reg¬ 
ulating  their  proceedings  in  such  delicate  matters,  but 
also  in  securing  the  just  rights  of  the  accused,  by  protect¬ 
ing  him  against  unintentional  mistakes  and  errors  of  judge¬ 
ment  in  that  body.  It  is  added  ;  u  And  no  person  shall 


IMPEACHMENTS, 


be  convicted,  without  the  concurrence  of  two  thirds  of 
the  members  present.”  The  reason  for  this  restriction, 
doubtless,  is,  that  if  a  bare  majority,  only,  were  sufficient  to 
convict  of  political  offences,  there  would  be  danger,  in 
times  of  high  popular  commotion,  or  party  spirit,  that  the 
influence  of  the  House  of  Representatives  would  be 
found  irresistible.  In  cases  of  trials  by  jury,  absolute 
unanimity  is  required  to  the  conviction  of  a  criminal ;  in 
cases  of  legislation,  a  majority  only  is  required  for  a  de¬ 
cision  ;  and,  here,  an  intermediate  number,  between  an 
entire  unanimity  and  a  bare  majority,  is  adopted.  If 
any  thing  short  of  unanimity  ought  to  be  allowed,  two 
thirds  seems  a  reasonable  limitation. 

§  116.  The  next  clause  respects  the  judgement  to  be 
rendered  in  cases  of  impeachment. — u  Judgement  in 
cases  of  impeachment  shall  not  extend  further  than  to 
removal  from  office,  and  disqualification  to  hold  and  en¬ 
joy  any  office  of  honor,  trust,  or  profit,  under  the  United 
States.  But  the  party  convicted  shall,  nevertheless,  be 
liable  and  subject  to  indictment,  trial,  judgement,  and 
punishment  according  to  law.”  As  the  principal  object 
of  the  power  of  impeachment  is  to  punish  political  crimes, 
the  restriction  of  the  punishment  to  mere  removal  and 
disqualification  from  office,  seems  appropriate,  and  suffi¬ 
cient.  Probably  the  abuses,  to  which  an  unlimited  pow¬ 
er  of  punishment  might  lead  in  times  of  popular  excite¬ 
ment,  and  party  strife,  introduced  this  restriction.  And 
the  experience  of  the  parent  country  had  demonstrated, 
that  it  could  be  applied  against  a  particular  victim  with  a 
cruelty  and  harshness,  wholly  incompatible  with  national 
justice,  and  public  honor.  Yet  persons,  who  are  guilty 
of  public  offences,  ought  not  wholly  to  escape  the  proper 
punishment,  affixed  by  law  in  other  cases.  And,  there¬ 
fore,  they  are  made  amenable,  like  their  fellow-citizens, 
to  the  common  course  of  trial  and  punishment  in  the 
courts  of  law.  This  provision  was  the  more  necessary, 
because  it  might  otherwise  be  contended,  that  they  could 
not,  according  to  a  known  maxim  of  law,  be  twice  tried 
and  punished  for  the  same  offence.  And  here,  again, 
the  wisdom  of  the  Constitution,  in  excluding  the  courts 


80  CONSTITUTION  OF  THE  UNITED  STATES. 

of  law  from  the  trial  of  impeachments,  is  shown'.  For, 
if  the  same  court  should  re-try  the  cause,  they  would 
already  have  decided  upon  the  party’s  guilt ;  and,  if  an 
inferior  court  should  try  it,  the  influence  of  the  supe¬ 
rior  court  would  be  apt  to  have  an  undue  predominance 
over  it. 

§  117.  There  is  wisdom,  and  sound  policy,  and  in¬ 
trinsic  justice  in  this  separation  of  the  offence,  at  least,  so 
far  as  the  jurisdiction  and  trial  are  concerned,  into  its 
proper  elements,  bringing  the  political  part  under  the 
power  of  the  political  department  of  the  government,  and 
retaining  the  civil  part  for  presentment  and  trial  in  the 
ordinary  forum.  A  jury  might  well  be  intrusted  with 
the  latter  ;  while  the  former  should  meet  its  appropriate 
trial  and  punishment  before  the  Senate.  If  it  should  be 
asked,  why  separate  trials  should  thus  be  successively 
had  ;  and  why,  if  a  conviction  should  take  place  in  a 
court  of  law,  that  court  might  not  be  intrusted  with  the 
power  to  pronounce  a  removal  from  office,  and  the  dis¬ 
qualification  to  office,  as  a  part  of  its  sentence,  the  an¬ 
swer  has  been  already  given  in  the  reasoning  against  vest¬ 
ing  any  court  of  law  with  merely  political  functions.  In 
the  ordinary  course  of  the  administration  of  criminal 
justice,  no  court  is  authorized  to  remove  or  disqualify  an 
offender,  as  a  part  of  its  regular  judgement.  If  it  results 
at  all,  it  results  as  a  consequence,  and  not  as  a  part,  of 
the  sentence.  But  it  may  be  properly  urged,  that  the 
vesting  of  such  a  high  and  delicate  power,  to  be  exercised 
by  a  court  of  law  at  its  discretion,  would,  in  relation  to 
the  distinguished  functionaries  of  the  government,  be  pe¬ 
culiarly  unfit  and  inexpedient.  What  could  be  more 
embarrassing,  than  for  a  court  of  law  to  pronounce  for  a 
removal  upon  the  mere  ground  of  political  usurpation,  or 
malversation  in  office,  admitting  of  endless  varieties,  from 
the  slightest  guilt  up  to  the  most  flagrant  corruption  ? 
Ought  a  President  to  be  removed  from  office  at  the  mere 
will  of  a  court  for  political  misdemeanors  ?  Is  not  a  po¬ 
litical  body,  like  the  Senate,  from  i;s  superior  informa¬ 
tion  in  regard  to  executive  functions,  far  better  qualified 
to  judge,  how  far  the  public  weal  might  be  promoted  by 


IMPEACHMENTS. 


81 


such  a  punishment  in  a  given  case,  than  a  mere  juridical 
tribunal  ?  Suppose  the  Senate  should  still  deem  the 
judgement  irregular,  or  unjustihable,  how  is  the  removal 
to  take  effect,  and  how  is  it  to  be  enforced  ?  A  separa¬ 
tion  of  the  removing  power  altogether  from  the  appoint¬ 
ing  power  might  create  many  practical  difficulties,  which 
ought  not,  except  upon  the  most  urgent  reasons,  to  be 
introduced  into  matters  of  government.  Without  at¬ 
tempting  to  maintain,  that  the  difficulties  would  be  insu¬ 
perable,  it  is  sufficient  to  show,  that  they  might  be  highly 
inconvenient  in  practice. 

§  1  IS.  In  order  to  complete  our  review  of  the  subject 
of  impeachments,  it  is  necessary  to  cite  a  clause  to  be 
found  in  a  subsequent  part  of  the  Constitution,  (Art.  2, 
Sect.  4,)  declaring,  who  shall  be  liable  to  impeachment, 
and  for  what  offences.  u  The  President,  Vice  Presi¬ 
dent,  and  all  civil  officers  of  the  United  States,  shall 
be  removed  from  office,  on  impeachment  for,  and  con¬ 
viction  of,  treason,  bribery,  or  other  high  crimes  and 
misdemeanors.” 

§  119.  From  this  clause,  it  appears,  that  the  power  of 
impeachment  does  not  extend  to  any,  but  civil  officers 
of  the  United  States,  including  the  President,  and  Vice 
President.  In  England,  it  extends  to  all  persons,  wheth¬ 
er  peers  or  commoners,  and  whether  officers  or  not. 
There  seems  a  peculiar  propriety,  in  a  republican  gov¬ 
ernment,  in  confining  the  impeaching  power  to  persons 
holding  office.  In  such  a  government,  all  the  citizens  are 
equal,  and  ought  to  have  the  same  security  of  a  trial  by 
jury,  for  all  crimes  and  offences  laid  to  their  charge, 
when  not  holding  any  official  character.  They  might, 
otherwise,  be  subject  to  gross  political  oppressions,  and 
prosecutions,  which  might  ruin  their  fortunes,  or  subject 
them  to  unjustifiable  odium.  When  a  person  accepts  an 
office,  he  may  fairly  be  held  to  consent  to  a  waiver  of 
this  privilege  ;  and  there  can  be  no  reasonable  objec¬ 
tion,  on  his  part,  to  a  trial  by  impeachment,  since  it  can  go 
no  further  than  to  a  removal  from  office,  and  a  disqualifi¬ 
cation  to  hold  office. 

§  120.  Who  are  u  civil  officers,”  within  the  meaning 


82 


CONSTITUTION  OF  THE  UNITED  STATES. 


of  this  constitutional  provision,  is  an  inquiry,  which  natu¬ 
rally  presents  itself ;  and  the  answer  cannot,  perhaps,  be 
deemed  settled,  by  any  solemn  adjudication.  The  term 
cc  civil”  has  various  significations.  It  is  sometimes  used, 
in  contradistinction  to  barbarous ,  or  savage ,  to  indicate 
a  state  of  society,  reduced  to  order  and  regular  govern¬ 
ment.  Thus,  we  speak  of  civil  life,  civil  society,  civil  gov¬ 
ernment,  and  civil  liberty;  in  which  cases,  it  is  nearly  equiv¬ 
alent,  in  meaning,  to  political.  It  is  sometimes  used  in 
contradistinction  to  criminal ,  to  indicate  the  private  rights 
and  remedies  of  men,  as  members  of  the  community,  in 
contrast  to  those,  which  are  public,  and  relate  to  the  gov¬ 
ernment.  Thus,  we  speak  of  civil  process  and  criminal 
process,  civil  jurisdiction  and  criminal  jurisdiction.  It 
is  sometimes  used  in  contradistinction  to  military  or  eccle¬ 
siastical ,  to  natural  or  foreign.  Thus,  w*e  speak  of  a 
civil  station,  as  opposed  to  a  military  or  ecclesiastical 
station  ;  a  civil  death,  as  opposed  to  a  natural  death  ;  a 
civil  war,  as  opposed  to  a  foreign  war.  The  sense,  in 
which  the  term  is  used  in  the  Constitution,  seems  to  be  in 
contradistinction  to  military ,  to  indicate  the  rights  and 
duties  relating  to  citizens  generally,  in  contradistinction  to 
those  of  persons  engaged  in  the  land  or  naval  service  of 
the  government.  It  is  in  this  sense,  that  Sir  Wiffiam 
Blackstone  speaks  of  the  laity  in  England,  as  divided  in¬ 
to  three  distinct  states  ;  the  civil,  the  military,  and  the 
maritime  ;  the  two  latter  embracing  the  land  and  naval 
forces  of  the  government.  And  in  the  same  sense,  the 
expenses  of  the  civil  list  of  officers  are  spoken  of,  in  con¬ 
tradistinction  to  those  of  the  army  and  navy. 

§  121.  All  officers  of  the  United  States,  therefore, 
who  hold  their  appointments  under  the  national  govern¬ 
ment,  whether  their  duties  are  executive  or  judicial,  in 
the  highest  or  in  the  lowest  departments  of  the  govern¬ 
ment,  with  the  exception  of  officers,  in  the  army  and  na¬ 
vy,  are  properly  civil  officers,  within  the  meaning  of  the 
Constitution,  and  liable  to  impeachment.  The  reason 
for  excepting  military  and  naval  officers  is,  that  they  are 
subject  to  trial  and  punishment  according  to  a  peculiar 
military  code,  the  laws,  rules,  and  usages  of  war.  The 


IMPEACHMENTS. 


83 


very  nature  and  efficiency  of  military  duties  and  discipline 
require  this  summary  and  exclusive  jurisdiction  ;  and  the 
promptitude  of  its  operations  is  not  only  better  suited 
to  the  notions  of  military  men  ;  but  they  deem  their  hon¬ 
or  and  their  reputation  more  safe  in  the  hands  of  their 
brother  officers,  than  in  any  merely  civil  tribunal.  In¬ 
deed,  in  military  and  naval  affairs,  it  is  quite  clear,  that 
the  Senate  could  scarcely  possess  competent  knowledge 
or  experience  to  decide  upon  the  acts  of  military  men  ; 
so  much  are  these  acts  to  be  governed  by  mere  usage 
and  custom,  by  military  discipline,  and  military  discre¬ 
tion,  that  the  Constitution  has  wisely  committed  the 
whole  trust  to  the  decision  of  courts-martial. 

§  122.  It  is  observable,  that  the  clause  makes  the 
President  and  Vice  President  expressly  liable  to  im¬ 
peachment.  And  the  question  arose,  upon  an  impeach¬ 
ment,  in  1799,  whether  a  Senator  is  a  civil  officer  of  the 
United  States,  in  the  sense  of  the  Constitution,  so  as  to 
be  liable  to  an  impeachment.  It  was  on  that  occasion  de¬ 
cided,  by  the  Senate,  that  he  is  not  ;  and,  of  course,  the 
same  principle  would  apply  to  a  Representative  in  Con¬ 
gress.  The  ground  of  this  decision  seems  to  have  been 
that  a  Senator  does  not  derive  his  appointment  from  or 
under  the  National  Government,  but  from  the  State  Le¬ 
gislature  ;  and  that  the  clause  contemplated  only  such  civil 
officers,  as  derived  their  appointment  from  the  National 
Government,  and  were  responsible  for  their  conduct 
thereto.  Motives  of  public  policy  would  also  conduce  to 
the  establishment  of  this  same  conclusion,  since  the  im¬ 
peachment  of  Legislators  for  their  official  acts  might  have 
a  tendency  to  overawe  or  intimidate  them  in  the  discharge 
ol  their  public  functions.  In  the  whole  history  and  prac¬ 
tice  of  England  and  America,  no  example  can  be  found,  of 
any  attempt  to  introduce  such  a  principle  ;  and  this  very 
silence  is  expressive  of  the  state  of  public  opinion  as  to 
the  danger  and  impolicy  of  conferring  such  a  power. 

§  123.  The  offences,  to  which  impeachments  extend, 
are,  u  treason,  bribery,  and  other  high  crimes  and  mis¬ 
demeanors.”  No  person  can  reasonably  doubt  the  pro¬ 
priety  of  the  removal,  and  disqualification  from  office,  of 


84 


CONSTITUTION  OF  THE  UNITED  STATES. 


a  person,  who  is  guilty  of  treason,  which  aims  at  the 
overthrow  of  the  government,  or  of  bribery,  which  cor¬ 
rupts  its  due  administration.  x\nd  doubtless  there  are 
other  high  crimes  and  misdemeanors,  to  which  the  pow¬ 
er  of  impeachment  may  properly  be  applied,  since  they 
may  be  utterly  incompatible  with  the  public  safety  and 
interests,  or  may  bring  the  government  itself  into  disgrace 
and  obloquy. 

§  124.  But  an  important  inquiry  still  remains,  as  to  the 
nature  and  definition  of  these  crimes.  What  is  the  crime  of 
treason  ?  What  is  the  crime  of  bribery  ?  What  are  high 
crimes  and  misdemeanors  in  the  sense  of  the  Constitution  ? 
For  the  definition  of  treason  we  may  resort  to  the  Consti¬ 
tution  itself.  For  the  definition  of  bribery  we  must  resort 
to  the  common  law,  which  alone  furnishes  the  proper  ex¬ 
position  of  the  nature  and  limits  of  the  offence.  But  neither 
the  Constitution,  nor  the  statutes  of  the  United  States,  have 
in  any  manner  defined  any  other  crimes  to  be  high  crimes 
and  misdemeanors,  and  as  such,  exposing  the  party  to 
impeachment.  How  then  are  we  to  ascertain,  what  of¬ 
fences,  besides  treason  and  bribery,  are  within  the  scope 
of  the  impeaching  power  ?  If  we  say,  that  there  are  no 
other  offences,  which  are  impeachable  offences,  until  Con¬ 
gress  has  enacted  some  law  on  the  subject,  then  the  Con¬ 
stitution,  as  to  all  crimes  except  treason  and  bribery,  has 
remained  a  dead  letter,  up  to  the  present  hour.  Such  a 
doctrine,  would  be  truly  alarming  and  dangerous. 

§  125.  Congress  have  unhesitatingly  adopted  the  con¬ 
clusion,  that  no  previous  statute  is  necessary  to  authorize 
an  impeachment  for  any  official  misconduct  ;  and  the 
rules  of  proceeding,  and  the  rules  of  evidence,  as  well  as 
the  principles  of  decision,  have  been  uniformly  regulated 
by  the  known  doctrines  of  the  common  law,  and  parlia¬ 
mentary  usage.  In  the  few  cases  of  impeachment,  which 
have  hitherto  been  tried,  no  one  of  the  charges  has  rested 
upon  any  statutable  misdemeanors.  It  seems,  then,  to 
be  the  settled  doctrine  of  the  high  court  of  impeachment, 
that  though  the  common  law  cannot  be  a  foundation  of  a 
jurisdiction  not  given  by  the  Constitution,  or  laws,  that 
jurisdiction,  when  given,  attaches,  and  is  to  be  exercised, 


IMPEACHMENTS. 


85 


according  to  the  rules  of  the  common  law  ;  and  that,  what 
are,  and  what  are  not,  high  crimes  and  misdemeanors,  is 
to  be  ascertained  by  a  recurrence  to  that  great  basis  of 
American  jurisprudence.  The  reasoning,  by  which  the 
power  of  the  House  of  Representatives  to  punish  for 
contempts  (which  are  breaches  of  privileges,  and  offen¬ 
ces  not  defined  by  any  positive  laws)  has  been  upheld  by 
the  Supreme  Court,  stands  upon  similar  grounds  ;  for  if 
the  House  had  no  jurisdiction  to  punish  for  contempts, 
until  the  acts  had  been  previously  defined,  and  ascertained 
by  positive  law,  it  is  clear,  that  the  process  of  arrest 
would  be  illegal. 

§  126.  This  subject  may  be  concluded  by  a  summary 
statement  of  the  mode  of  proceeding  in  the  institution  and 
trial  of  impeachments,  as  it  is  of  rare  occurrence,  and  is 
not  governed  by  the  formalities  of  the  ordinary  prosecu¬ 
tions  in  courts  at  law. 

§  127.  When,  then,  an  officer  is  known  or  suspected 
to  be  guilty  of  malversation  in  office,  some  member  of 
the  House  of  Representatives  usually  brings  forward  a 
resolution  to  accuse  the  party,  or  for  the  appointment  of 
a  committee,  to  consider  and  report  upon  the  charges 
laid  against  him.  The  latter  is  the  ordinary  course  ;  and 
the  report  of  a  committee  usually  contains,  if  adverse  to 
the  party,  a  statement  of  the  charges,  and  recommends 
a  resolution,  that  he  be  impeached  therefor.  If  the  res¬ 
olution  is  adopted  by  the  House,  a  committee  is  then 
appointed  to  impeach  the  party  at  the  bar  of  the  Senate, 
and  to  state,  that  the  articles  against  him  will  be  exhibit¬ 
ed  in  due  time,  and  made  good  before  the  Senate  ;  and 
to  demand,  that  the  Senate  take  order  for  the  appearance 
of  the  party  to  answer  to  the  impeachment.  This  being 
accordingly  done,  the  Senate  signify  their  willingness  to 
take  such  order  ;  and  articles  are  then  prepared  by  a 
committee,  under  the  direction  of  the  House  of  Repre¬ 
sentatives,  which,  when  reported  to,  and  approved  by, 
the  House,  are  then  presented  in  the  like  manner  to  the 
Senate  ;  and  a  committee  of  managers  are  appointed  to 
conduct  the  impeachment.  As  soon  as  the  articles  are 
thus  presented,  the  Senate  issue  a  process,  summoning 
8  xiii. 


86  CONSTITUTION  OF  THE  UNITED  STATES. 

% 

the  party  to  appear,  at  a  given  day,  before  them,  to  an¬ 
swer  the  articles.  The  process  is  served  by  the  sergeant- 
at-arms  of  the  Senate,  and  due  return  is  made  thereof 
under  oath. 

§  128.  The  articles  thus  exhibited,  need  not,  and  in¬ 
deed  do  not,  pursue  the  strict  form  and  accuracy  of  an 
indictment.  They  are  sometimes  quite  general  in  the 
form  of  the  allegations  ;  but  always  contain,  or  ought  to 
contain,  so  much  certainty,  as  to  enable  the  party  to  put 
himself  upon  the  proper  defence,  and  also,  in  case  of  an 
acquittal,  to  avail  himself  of  it,  as  a  bar  to  another  im¬ 
peachment.  Additional  articles  may  be  exhibited,  per¬ 
haps,  at  any  stage  of  the  prosecution. 

§  129.  When  the  return  day  of  the  process  for  ap¬ 
pearance  has  arrived,  the  Senate  resolve  themselves  into 
a  court  of  impeachment,  and  the  Senators  are  at  that 
time,  or  before,  solemnly  sworn,  or  affirmed,  to  do  im¬ 
partial  justice  upon  the  impeachment,  according  to  the 
Constitution  and  laws  of  the  United  States.  The  per¬ 
son  impeached  is  then  called  to  appear  and  answer  the 
articles.  If  he  does  not  appear  in  person,  or  by  attor¬ 
ney,  his  default  is  recorded,  and  the  Senate  may  proceed 
ex  parte  (that  is,  on  the  claim  of  one  side)  to  the  trial  of 
the  impeachment.  If  he  does  appear  in  person,  or  by 
attorney,  his  appearance  is  recorded.  Counsel  for  the 
parties  are  admitted  to  appear,  and  to  be  heard  upon  an 
impeachment. 

§  130.  When  the  party  appears,  he  is  entitled  to  be 
furnished  with  a  copy  of  the  articles  of  impeachment,  and 
time  is  allowed  him  to  prepare  his  answer  thereto.  The 
answer,  like  the  articles,  is  exempted  from  the  necessity 
of  observing  great  strictness  of  form.  The  party  may 
plead,  that  he  is  not  guilty,  as  to  part,  and  make  a  fur¬ 
ther  defence,  as  to  the  residue  ;  or  he  may,  in  a  few 
words,  saving  all  exceptions,  deny  the  whole  charge  or 
charges  ;  or  he  may  plead  specially,  in  justification  or 
excuse  of  the  supposed  offences,  all  the  circumstances 
attendant  upon  the  case.  And  he  is  also  indulged  with 
the  liberty  of  offering  argumentative  reasons,  as  well  as 
facts,  against  the  charges,  in  support,  and  as  part,  of  his 


IMPEACHMENTS. 


87 


answer,  to  repel  them.  It  is  usual  to  give  a  full  and  par¬ 
ticular  answer  separately  to  each  article  of  the  accusation. 

§  131.  When  the  answer  is  prepared  and  given  in, 
the  next  regular  proceeding  is,  for  the  House  of  Repre¬ 
sentatives  to  file  a  replication  to  the  answer  in  writing, 
in  substance  denying  the  truth  and  validity  of  the  defence 
stated  in  the  answer,  and  averring  the  truth  and  suffi¬ 
ciency  of  the  charges,  and  the  readiness  of  the  House  to 
prove  them  at  such  convenient  time  and  place,  as  shall 
be  appointed  for  that  purpose  by  the  Senate.  A  time 
is  then  assigned  for  the  trial  ;  and  the  Senate,  at  that 
period  or  before,  adjust  the  preliminaries  and  other  pro¬ 
ceedings  proper  to  be  had,  before  and  at  the  trial,  by 
fixed  regulations  ;  which  are  made  known  to  the  House 
of  Representatives,  and  to  the  party  accused.  On  the 
day  appointed  for  the  trial,  the  House  of  Representatives 
appear  at  the  bar  of  the  Senate,  either  in  a  body,  or  by 
the  managers  selected  for  that  purpose,  to  proceed  with 
the  trial.  Process  to  compel  the  attendance  of  witnesses 
is  previously  issued  at  the  request  of  either  party,  by  or¬ 
der  of  the  Senate  ;  and  at  the  time  and  place  appointed, 
they  are  bound  to  appear  and  give  testimony.  On  the 
day  of  trial,  the  parties  being  ready,  the  managers  to  con¬ 
duct  the  prosecution  open  it  on  behalf  of  the  House  of 
Representatives,  one  or  more  of  them  delivering  an  ex¬ 
planatory  speech,  either  of  the  whole  charges,  or  of  one 
or  more  of  them.  The  proceedings  are  then  conducted 
substantially,  as  they  are  upon  common  judicial  trials,  as 
to  the  admission  or  rejection  of  testimony,  the  examina¬ 
tion  and  cross-examination  of  witnesses,  the  rules  of  evi¬ 
dence,  and  the  legal  doctrines,  as  to  crimes  and  misde¬ 
meanors.  When  the  whole  evidence  has  been  gone 
through,  and  the  parties  on  each  side  have  been  fully 
heard,  the  Senate  then  proceed  to  the  consideration  of 
the  case.  If  any  debates  arise,  they  are  conducted  in 
secret  ;  if  none  arise,  or  after  they  are  ended,  a  day  is 
assigned  for  a  final  public  decision  by  yeas  and  nays 
upon  each  separate  charge  in  the  articles  of  impeach¬ 
ment.  When  the  court  is  assembled  for  this  purpose, 
the  question  is  propounded  to  each  member  of  the  Sen- 


88  CONSTITUTION  OF  THE  UNITED  STATES. 

ate  by  name,  by  the  President  of  the  Senate,  in  the 
following  manner,  upon  each  article,  the  same  being 

first  read  by  the  Secretary  of  the  Senate.  u  Mr.  - , 

how  say  you,  is  the  respondent  guilty,  or  not  guilty, 

of  a  high  crime  and  misdemeanor,  as  charged  in  the - 

article  of  impeachment  ?”  Whereupon  the  member 
rises  in  his  place,  and  answers  guilty,  or  not  guilty,  as 
his  opinion  is.  If  upon  no  one  article,  two  thirds  of  the 
Senate  decide,  that  the  party  is  guilty,  he  is  then  entitled 
to  an  acquittal,  and  is  declared  accordingly  to  be  acquit¬ 
ted  by  the  President  of  the  Senate.  If  he  is  convicted 
of  all,  or  any,  of  the  articles,  the  Senate  then  proceed  to 
fix,  and  declare  the  proper  punishment.  The  pardoning 
power  of  the  President  does  not,  as  will  be  presently 
seen,  extend  to  judgements  upon  impeachment  ;  and 
hence,  when  once  pronounced,  they  become  absolute 
and  irreversible. 

§  132.  Having  thus  gone  through  the  whole  subject 
of  impeachments,  it  only  remains  to  observe,  that  a  close 
survey  of  the  system,  unless  we  are  egregiously  deceived, 
will  completely  demonstrate  the  wisdom  of  the  arrange¬ 
ments  made  in  every  part  of  it.  The  jurisdiction  to  im¬ 
peach  is  placed,  where  it  should  be,  in  the  possession 
and  power  of  the  immediate  representatives  of  the  peo¬ 
ple.  The  trial  is  before  a  body  of  great  dignity,  and 
ability,  and  independence,  possessing  the  requisite  knowl¬ 
edge  and  firmness  to  act  with  vigor,  and  to  decide  with 
impartiality  upon  the  charges.  The  persons  subjected 
to  the  trial  are  officers  of  the  national  government  ;  and 
the  offences  are  such,  as  may  affect  the  rights,  duties, 
and  relations  of  the  party  accused,  to  the  public  in  his 
political  or  official  character,  either  directly  or  remotely. 
The  general  rules  of  law  and  evidence,  applicable  to 
common  trials,  are  interposed,  to  protect  the  party  against 
the  exercise  of  wanton  oppression,  and  arbitrary  power. 
And  the  final  judgement  is  confined  to  a  removal  from, 
and  disqualification  for,  office  ;  thus  limiting  the  punish¬ 
ment  to  such  modes  of  redress,  as  are  peculiarly  fit  for  a 
political  tribunal  to  administer,  and  as  will  secure  the  pub¬ 
lic  against  political  injuries.  In  other  respects,  the  offence 


ELECTIONS  OF  CONGRESS. 


89 


is  left  to  be  disposed  of  by  the  common  tribunals  of  jus¬ 
tice,  according  to  the  laws  of  the  land,  upon  an  indict¬ 
ment  found  by  a  grand  jury,  and  a  trial  by  a  jury  of 
peers,  before  whom  the  party  is  to  stand  for  his  final  de¬ 
liverance,  like  his  fellow-citizens.' 


CHAPTER  XII. 

Elections  and  Meetings  of  Congress. 

§  133.  We  next  come  to  the  fourth  section  of  the 
first  article,  which  treats  of  the  elections  and  meetings  of 
Congress.  The  first  clause  is, — “  The  time,  places,  and 
manner  of  holding  elections  for  Senators  and  Represen¬ 
tatives,  shall  be  prescribed  in  each  State,  by  the  Legisla¬ 
ture  thereof.  But  the  Congress  may,  at  any  time,  by 
law,  make  or  alter  such  regulations,  except  as  to  the 
places  of  choosing  Senators.”  There  is  great  propriety 
in  leaving  to  the  State  Legislatures  the  right,  in  the  first 
instance,  of  regulating  the  times  and  places  of  choosing  the 
members  of  Congress,  as  every  State  is  thus  enabled  to 
consult  its  own  local  convenience  in  the  choice  ;  and  it 
would  be  difficult  to  prescribe  any  uniform  time  or  place 
of  elections.,  which  would,  in  all  possible  changes  in  the 
situation  of  the  States,  be  found  convenient  for  all  of 
them.  On  the  other  hand,  as  the  ability  of  the  General 
Government  to  carry  on  its  own  operations  depends  upon 
these  elections  being  duly  had,  it  is  plain,  that  it  ought 
not  to  be  left  to  the  State  governments,  exclusively,  to 
decide,  whether  such  elections  should  be  had,  or  not. 
The«pnaxim  of  sound  political  wisdom  is,  that  every  gov¬ 
ernment  ought  to  contain  in  itself  the  means  of  its  own 
preservation.  And,  therefore,  an  ulterior  and  paramount 
power  is  reserved  to  Congress,  to  make  or  alter  the  reg¬ 
ulations  as  to  such  elections,  so  as  to  preserve  the  effi¬ 
ciency  of  the  General  Government.  But,  inasmuch  as 
the  State  Legislatures  are  to  elect  Senators,  the  places 
of  their  meetings  are  left  to  their  own  discretion,  as  most 

8* 


90  CONSTITUTION  OF  THE. UNITED  STATES. 

fit  to  be  decided  by  themselves,  with  reference  to  their 
ordinary  duties  and  convenience.  But  Congress  may 
still  prescribe  the  times,  at  which  such  elections  shall  be 
made. 

§  134.  The  next  clause  is, — “  The  Congress  shall 
assemble  at  least  once  in  every  year  ;  and  such  meeting 
shall  be  on  the  first  Monday  of  December,  unless  they 
shall,  by  law,  appoint  a  different  day-”  The  importance 
of  this  provision  can  scarcely  be  overrated  by  a  free  peo¬ 
ple,  accustomed  to  know  their  rights,  and  jealous  in  the 
maintenance  of  them.  Unless  some  time  were  prescrib¬ 
ed  for  the  regular  meetings  of  Congress,  they  would  de¬ 
pend  upon  the  good  will  and  pleasure  of  Congress  itself, 
or  of  some  other  department  of  the  government.  In  times 
of  violent  factions,  or  military  usurpations,  attempts  might 
be  made  to  postpone  such  meetings  for  an  unreasonable 
length  of  time,  in  order  to  prevent  the  redress  of  griev¬ 
ances,  or  secure  the  violators  of  the  laws  from  condign 
punishment.  Annual  meetings  of  the  legislature  have 
long  been  deemed,  both  in  England  and  America,  a  great 
security  to  liberty  and  justice  ;  and  it  was  true  wisdom 
to  establish  the  duty  of  such  annual  meetings,  by  a  polit¬ 
ical  provision  in  the  Constitution,  which  could  not  be 
evaded  or  disobeyed. 


CHAPTER  XIII. 

Powers  and  Privileges  of  both  Houses. 

§  135.  The  fifth  section  of  the  first  article  contains 
an  enumeration  of  the  powers,  rights,  and  duties  of%each 
branch  of  the  Legislature,  in  its  separate  and  distinct  or¬ 
ganic  character.  The  first  clause  is, — u  Each  House 
shall  be  the  judge  of  the  elections,  returns,  and  qualifica¬ 
tions,  of  its  own  members  ;  and  a  majority  of  each  shall 
constitute  a  quorum  to  do  business  ;  but  a  smaller  num¬ 
ber  may  adjourn,  from  day  to  day,  and  may  be  authorized 
to  compel  the  attendance  of  absent  members,  in  such 


PRIVILEGES  OF  BOTH  HOUSES. 


91 


manner,  and  under  such  penalties,  as  each  House  may 
provide.” 

§  136.  These  powers  are  common  to  all  the  legisla¬ 
tive  bodies  of  the  States  ;  and,  indeed,  to  those  of  other 
free  governments.  They  seem  indispensable  to  the  due 
independence  and  efficiency  of  the  body.  The  power  to 
judge  of  the  elections,  returns,  and  qualifications,  of  the 
members  of  each  House,  must  be  lodged  somewhere  ; 
for  otherwise,  any  intruder,  or  usurper,  might  assume  to 
be  a  member.  It  can  be  safely  lodged  in  no  other  body, 
but  that,  in  which  the  party  claims  a  seat ;  for  otherwise, 
its  independence,  its  purity,  and  even  its  existence,  might 
be  under  the  control  of  a  foreign  authority.  It  is  equally 
important,  that  a  proper  quorum  for  the  despatch  of  busi¬ 
ness  should  be  fixed,  otherwise  a  cunning,  or  industrious, 
minority  might,  by  stratagem,  usurp  the  functions  of  the 
majority,  and  pass  laws  at  their  pleasure.  On  the  other 
hand,  if  a  smaller  number  were  not  authorized  to  adjourn 
from  day  to  day,  or  to  compel  the  attendance  of  other 
members,  all  legislation  might  be  suspended  at  the  pleas¬ 
ure  of  the  absentees,  and  the  Legislature  itself  be  virtually 
dissolved. 

§  137.  The  next  clause  is, — u  Each  House  may  de¬ 
termine  the  rules  of  its  proceedings,  punish  its  members 
for  disorderly  behavior,  and,  with  the  concurrence  of  two 
thirds,  expel  a  member.”  These  powers,  also,  are  usually 
granted  to  legislative  bodies.  If  they  did  not  exist,  it 
would  be  utterly  impracticable  to  transact  the  business  of 
the  nation  at  all,  or  at  least,  to  transact  it  with  decency, 
deliberation,  and  order.  Without  rules,  no  public  body 
can  suitably  perform  its  functions.  If  rules  are  made, 
they  are  mere  nullities,  unless  the  persons  on  whom  they 
are  to  operate,  can  be  compelled  to  obey  them.  But,  if 
an  unlimited  power  to  punish,  even  to  the  extent  of  ex¬ 
pulsion,  existed,  it  might,  in  factious  times,  be  applied  by 
a  domineering  majority,  to  get  rid  of  the  most  intelligent, 
virtuous,  and  efficient  of  their  opponents.  There  is, 
therefore,  a  check  interposed,  which  requires  a  concur¬ 
rence  of  two  thirds  to  expel  ;  and  this  number  can  hard¬ 
ly  be  presumed  to  concur  in  exercising  the  power  of  ex- 


92 


CONSTITUTION  OF  THE  UNITED  STATES. 


pulsion,  except  in  cases  of  flagrant  breaches  of  the  rights 
of  the  House. 

§  138.  The  next  clause  is,— “  Each  House  shall  keep 
a  journal  of  its  proceedings,  and  from  time  to  time  pub¬ 
lish  the  same,  except  such  parts  as  may,  in  their  judge¬ 
ment,  require  secrecy.  And  the  yeas  and  nays  of  the 
members  of  either  House,  on  any  question,  shall,  at 
the  desire  of  one  fifth  of  those  present,  be  entered  on 
the  journal.”  Each  of  these  provisions  has  the  same 
object,  to  insure  publicity  and  responsibility  in  all  the 
proceedings  of  Congress,  so  that  the  public  mind  may  be 
enlightened,  as  to  the  acts  of  the  members.  But  cases 
may  exist,  where  secrecy  may  be  indispensable  to  the 
complete  operation  of  the  intended  acts,  either  at  home  or 
abroad.  And,  on  the  other  hand,  an  unlimited  power  to 
call  the  yeas  and  nays  on  every  question,  at  the  mere  will 
of  a  single  member,  would  interrupt  and  retard,  and,  in 
many  cases,  wholly  defeat,  the  public  business.  In  each 
case,  therefore,  a  reasonable  limitation  is  interposed. 

§  139.  The  next  clause  is, — 44  Neither  House,  during 
the  session  of  Congress,  shall,  without  the  consent  of  the 
other,  adjourn  for  more  than  three  days,  nor  to  any  other 
place  than  that  in  which  the  two  Houses  shall  be  sitting.” 
Here,  again,  the  object  of  the  clause  is  manifest,  to  pre¬ 
vent  either  House  from  suspending,  at  its  pleasure,  the 
regular  course  of  legislation,  and  even  of  carrying  the 
power  to  the  extent  of  a  dissolution  of  the  session.  The 
duration  of  the  sessions  of  Congress,  subject  only  to  the 
constitutional  expiration  of  the  term  of  office  of  the  mem¬ 
bers,  thus  depends  upon  their  own  pleasure,  with  the  sin¬ 
gle  exception  (as'we  shall  hereafter  see)  of  the  case,  where 
the  two  Houses  disagree,  in  respect  to  the  time  of  ad¬ 
journment,  when  it  is  given  to  the  President.  So  that 
their  independence  is  effectually  guarded  against  any  en¬ 
croachment  on  the  part  of  the  Executive.  In  England, 
the  King  may  prorogue  or  dissolve  Parliament  at  his  plea¬ 
sure  ;  and,  before  the  Revolution,  the  same  power  was 
generally  exercised  by  the  Governors  in  most  of  the  Amer¬ 
ican  Colonies. 

§  140.  These  are  all  the  powers  and  privileges  ex- 


PRIVILEGES  OF  BOTH  HOUSES. 


93 


pressly  enumerated,  as  belonging  to  the  two  Houses. 
But  other  incidental  powers  may  well  be  presumed  to  ex¬ 
ist.  Among  these,  the  power  to  punish  contempts,  com¬ 
mitted  against  either  House  by  strangers,  has  been  gener¬ 
ally  admitted,  and  insisted  upon  in  practice,  as  indispensa¬ 
ble  to  the  freedom,  the  deliberative  functions,  and  the 
personal  safety  of  the  members. 

§  141.  The  sixth  section  of  the  first  article  contains 
an  enumeration  of  the  personal  rights,  privileges,  and 
disabilities  of  the  members,  as  contradistinguished  from 
those  of  the  Houses,  of  which  they  are  members.  The 
first  clause  is, — “  The  Senators  and  Representatives  shall 
receive  a  compensation  for  their  services,  to  be  ascer¬ 
tained  by  law,  and  paid  out  of  the  Treasury  of  the 
United  States.  They  shall,  in  all  cases,  except  treason, 
felony,  or  breach  of  the  peace,  be  privileged  from  arrest, 
during  their  attendance  at  the  session  of  the  respective 
Houses,  and  in  going  to,  and  returning  from,  the  same. 
And  for  any  speech  or  debate  in  either  House,  they  shall 
not  be  questioned  in  any  other  place.” 

§  142.  First,  Compensation.  It  has  been  greatly 
questioned,  whether,  on  the  whole,  it  is  best  to  allow 
compensation  to  members  of  Congress,  or  not.  On  the 
one  hand,  it  has  been  said,  that  it  tempts  unworthy  and 
avaricious  men  to  intrigue  for  office,  and  to  defeat  candi¬ 
dates  of  higher  talents  and  virtues.  On  the  other  hand, 
it  has  been  said,  that  unless  compensation  be  allowed, 
merit  of  the  highest  order  may  be  excluded  by  poverty 
from  the  national  councils  ;  and  in  a  republican  govern¬ 
ment  nothing  can  be  more  impolitic  than  to  give  to  wealth 
superior  encouragement,  and  facility  in  obtaining  office. 
The  latter  reasoning  had  its  due  force,  and  prevailed  in 
the  Convention  and  with  the  people. 

§143.  Next,  the  privilege  from  arrest.  This  is  given 
in  all  cases,  (except  of  crimes,)  in  going  to,  attending 
upon,  and  returning  from,  any  session  of  Congress.  It 
would  be  a  great  mistake  to  consider  it,  as  in  reality  a 
personal  privilege,  for  the  benefit  of  the  member.  It  is 
rather  a  privilege  for  the  benefit  of  his  constituents,  that 
they  may  not  be  deprived  of  the  presence,  services,  and 


94 


CUNsjTI  TUTION  OF  THE  UNITED  STATES. 


influence  of  their  own  Representative  in  the  national 
councils.  It  might  otherwise  happen,  that  he  might  be 
arrested  from  mere  malice,  or  from  political  pers6cution, 
or  upon  some  unfounded  claim,  and  thus  they  might  be 
deprived  of  his  aid  and  talents  during  the  whole  session. 

§  144.  Thirdly,  the  liberty  of  speech  and  debate. 
This,  too,  is  less  to  be  regarded  as  a  personal  privilege, 
than  as  a  public  right,  to  secure  independence,  firmness, 
and  fearlessness  on  the  part  of  the  members,  so  that,  in 
discharging  their  high  trusts,  they  may  not  be  overawed 
by  wealth,  or  power,  or  dread  of  prosecution.  The 
same  privilege  is  enjoyed  in  the  British  Parliament,  and 
also  in  the  several  State  Legislatures  of  the  Union,  found¬ 
ed  upon  the  same  reasoning. 

§  145.  The  next  clause  regards  the  disqualifications 
of  members  of  Congress.  u  No  Senator  or  Represen¬ 
tative  shall,  during  the  time  for  which  he  is  elected,  be 
appointed  to  any  civil  office,  under  the  authority  of  the 
United  States,  which  shall  have  been  created,  or  the 
emoluments  whereof  shall  have  been  increased  during 
such  time.  And  no  person,  holding  any  office  under  the 
United  States,  shall  be  a  member  of  either  House  of 
Congress  during  his  continuance  in  office.”  The  object 
of  these  provisions  is  sufficiently  manifest.  It  is,  to  se¬ 
cure  the  Legislature  against  undue  influence,  and  indirect 
corruption,  on  the  part  of  the  Executive.  Whether 
much  reliance  can  be  placed  upon  guards  of  this  disquali¬ 
fying  nature,  has  been  greatly  doubted.  It  is  not  easy, 
by  any  constitutional  or  legislative  enactments,  to  shut 
out  all,  or  even  many,  of  the  avenues  of  undue  or  corrupt 
influence  upon  the  human  mind.  The  great  securities  for 
society — -those,  on  which  it  must  for  ever  rest  in  a  free 
government — are,  responsibility  to  the  people  through 
elections,  and  personal  character,  and  purity  of  principle. 
Where  these  are  wanting,  there  never  can  be  any  solid 
confidence,  or  any  deep  sense  of  duty.  Where  these  exist, 
they  become  a  sufficient  guarantee  against  all  sinister  influ¬ 
ences,  as  well  as  all  gross  offences.  It  has  been  remarked, 
with  equal  profoundness  and  sagacity,  that,  as  there  is  a 
degree  of  depravity  in  mankind,  which  requires  a  certain 


PRIVILEGES  OF  BOTH  HOUSES. 


95 


degree  of  circumspection  and  distrust  ;  so  there  are  other 
qualities  in  human  nature,  which  justify  a  certain  portion 
of  esteem  and  confidence.  Republican  government  pre¬ 
supposes  the  existence  of  these  qualities  in  a  higher  form, 
than  any  other.  It  might  well  be  deemed  harsh  to  dis¬ 
qualify  an  individual  from  any  office,  clearly  required  by 
the  exigencies  of  the  country,  simply  because  he  bad  done 
his  duty.  And,  on  the  other  hand,  the  disqualification 
might  operate  upon  many  persons,  who  might  find  their 
way  into  the  national  councils,  as  a  strong  inducement  to 
postpone  the  creation  of  necessary  offices,  lest  they  should 
become  victims  of  their  high  discharge  of  duty.  The 
chances  of  receiving  an  appointment  to  a  new  office  are 
not  so  many,  or  so  enticing,  as  to  bewilder  many  minds  ; 
and  if  they  are,  the  aberrations  from  duty  are  so  easily 
traced,  that  they  rarely,  if  ever,  escape  the  public  re¬ 
proaches.  And  if  influence  is  to  be  exerted  by  the  Ex¬ 
ecutive,  for  improper  purposes,  it  will  be  quite  as  easy, 
and  in  its  operation  less  seen,  and  less  suspected,  to  give 
the  stipulated  patronage  in  another  form,  either  of  office, 
or  of  profitable  employment,  already  existing. 

§  146.  The  other  part  of  the  clause,  which  disquali¬ 
fies  persons,  holding  any  office  under  the  United  States, 
from  being  members  of  either  House,  during  their  continu¬ 
ance  in  office,  has  been  still  more  universally  applauded  ; 
and  has  been  vindicated  upon  the  highest  grounds  of  pub¬ 
lic  policy.  It  is  doubtless  founded  in  a  deference  to  State 
jealousy,  and  a  sincere  desire  to  obviate  the  fears,  real  or 
imaginary,  that  the  General  Government  would  obtain  an 
undue  preference  over  the  State  governments.  It  has 
also  the  strong  recommendation,  that  it  prevents  any  undue 
influence  from  office,  either  upon  the  party  himself,  or 
those,  with  whom  he  is  associated  in  legislative  delibera¬ 
tions.  The  universal  exclusion  of  all  persons  holding 
office,  is  (it  must  be  admitted)  attended  with  some  incon¬ 
veniences.  The  Heads  of  the  Departments  are,  in  fact, 
thus  precluded  from  proposing,  or  vindicating  their  own 
measures  in  the  face  of  the  nation  in  the  course  of  debate  ; 
and  are  compelled  to  submit  them  to  other  men,  who  are 
either  imperfectly  acquainted  with  the  measures,  or  are 


96  CONSTITUTION  OF  THE  UNITED  STATES. 


indifferent  to  their  success  or  failure.  Thus,  that  open 
and  public  responsibility  for  measures,  which  properly  be¬ 
longs  to  the  Executive  in  all  governments,  and  especially 
in  a  republican  government,  as  its  greatest  security  and 
strength,  is  completely  done  away.  The  Executive  is 
compelled  to  resort  to  secret  and  unseen  influence,  to  pri¬ 
vate  interviews,  and  private  arrangements,  to  accomplish 
his  own  appropriate  purposes  ;  instead  of  proposing  and 
sustaining  his  own  duties  and  measures  by  a  bold  and  manly 
appeal  to  the  nation  in  the  face  of  its  representatives.  One 
consequence  of  this  state  of  things,  is,  that  there  never  can 
be  traced  home  to  the  Executive  any  responsibility  for  the 
measures,  which  are  planned,  and  carried  at  his  suggestion. 
Patronage  may  be  quite  as  effective  under  a  different  form. 
It  may  confer  office  on  a  friend,  or  a  relative,  or  a  depen¬ 
dent.  The  hope  of  office,  in  future,  may  seduce  a  man 
from  bis  duty,  as  much  as  its  present  possession.  And, 
after  all,  the  chief  guards  against  venality,  in  all  govern¬ 
ments,  must  be  placed  in  the  high  virtue,  the  unspotted 
honor,  and  the  pure  patriotism  of  public  men.  On  this 
account,  it  has  been  doubted,  whether  the  exclusion  of  the 
Heads  of  Departments  from  Congress,  has  not  led  to  the 
use  of  indirect  and  irresponsible  influence,  on  the  part  of 
the  Executive,  over  the  measures  of  Congress,  far  more 
than  could  exist,  if  the  Heads  of  Departments  held  seats 
in  Congress,  and  might  be  there  compelled  to  avow  and 
defend  their  own  opinions.  The  provision,  however,  as 
it  stands,  has  hitherto  been  found  acceptable  to  the  Amer- 
can  people,  and  ought  not  lightly  to  be  surrendered. 


CHAPTER  XIV. 
t Mode  of  Passing  Laics. 

§  147.  The  seventh  section  of  the  first  article,  de¬ 
clares  the  mode  of  passing  laws.  The  first  clause  is, — 
u  All  bills  for  raising  revenue,  shall  originate  in  the  House 
of  Representatives  ;  but  the  Senate  may  propose,  or 


MODE  OF  PASSING  LAWS. 


97 


concur  with  amendments,  as  in  other  bills.”  This  clause 
had  its  origin  in  the  known  rule  of  the  British  Parliament, 
that  all  money  bills  shall  originate  in  the  House  of  Com¬ 
mons.  And  so  jealous  are  the  House  of  Commons  of 
this  valuable  privilege,  that  they  will  not  suffer  the  House 
of  Lords  to  make  the  least  alteration  or  amendment  to 
any  such  bill.  The  general  reason,  assigned  for  this  priv¬ 
ilege,  in  that  kingdom,  is,  that  all  taxes  and  supplies,  raised 
upon  the  people,  should  originate  with  their  immediate 
representatives.  But,  in  truth,  it  was  intended  by  the  pop¬ 
ular  branch  of  the  legislature,  by  this  course,  to  acquire  a 
permanent  importance  in  the  government ;  and  to  be  able 
to  counterpoise  the  influence  of  the  House  of  Lords,  a 
body  having  hereditary  rights  and  dignity.  The  same 
reason  does  not  apply,  with  the  same,  force  to  our  republi¬ 
can  forms  of  government.  But  still,  as  the  same  power 
was  exercised  under  some  of  the  State  governments,  and 
as  the  House  of  Representatives  may  be  deemed  pecu¬ 
liarly  well  fitted  to  bring,  to  such  subjects,  a  full  knowledge 
of  the  local  interests,  as  well  as  of  the  wishes  and  opin¬ 
ions  of  the  people,  there  is  no  inconvenience  in  allowing 
to  the  House  the  exclusive  right  to  originate  all  such  bills 
in  the  course  of  legislation.  But,  as  taxes  and  revenue 
laws  may  bear  with  great  inequality  upon  some  of  the 
States,  and,  above  all,  as  direct  taxes  are,  and  must,  ac¬ 
cording  to  the  Constitution,  be  apportioned  among  the 
States  according  to  the  ratio  of  their  population,  as  al¬ 
ready  stated,  a  power  to  amend  such  laws  is  properly  re¬ 
served  to  the  Senate,  where  all  the  States  possess  an 
equal  voice.  The  due  influence  of  all  the  States  is  thus 
preserved  over  a  subject  of  such  vital  importance  ;  and 
it  might  otherwise  happen,  that,  from  the  overwhelming 
representation  of  some  of  the  large  States,  in  the  House 
of  Representatives,  taxes  might  be  levied,  which  would 
bear,  with  peculiar  severity  and  hardship,  upon  the  agricul¬ 
tural,  commercial,  or  manufacturing,  interests  of  the  small¬ 
er  States  ;  and  thus  the  equilibrium  of  power,  of  influence, 
and  of  interest,  of  the  several  States,  in  the  National  coun¬ 
cils,  might  be  practically  subverted. 

§  148.  The  next  clause  respects  the  power  of  the 
9  xiii. 


98  CONSTITUTION  OF  THE  UNITED  STATES. 

President  to  approve  and  negative  laws.  It  is  as  fol¬ 
lows  : — u  Every  bill,  which  shall  have  passed  the  House 
of  Representatives  and  the  Senate,  shall,  before  it  be¬ 
come  a  law,  be  presented  to  the  President  of  the  United 
States.  If  he  approve,  he  shall  sign  it ;  but  if  not,  he 
shall  return  it,  with  his  objections,  to  that  House,  in  which 
it  shall  have  originated,  who  shall  enter  the  objections  at 
large,  on  their  journal,  and  proceed  to  reconsider  it.  If, 
after  such  reconsideration,  two  thirds  of  that  House  shall 
agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the 
objections,  to  the  other  House,  by  which  it  shall,  like¬ 
wise,  he  reconsidered  ;  and,  if  approved  by  two  thirds  of 
that  House,  it  shall  become  a  law.  But,  in  all  such  cases, 
the  votes  of  both  Houses  shall  be  determined  by  yeas  and 
nays,  and  the  names  of  the  persons  voting  for  and  against 
the  bill,  shall  be  entered  on  the  journal  of  each  House  re¬ 
spectively.  If  any  bill  shall  not  be  returned  by  the  Pres¬ 
ident  within  ten  days  (Sundays  excepted)  after  it  shall 
have  been  presented  to  him,  the  same  shall  be  a  law,  in 
like  manner,  as  if  he  had  signed  it,  unless  the  Congress, 
by  their  adjournment,  prevent  its  return,  in  which  case  it 
shall  not  be  a  law.” 

§  149.  The  reasons,  why  the  President  should  possess 
a  qualified  negative,  (for  an  absolute  negative  would  be 
highly  objectionable,)  are,  if  not  quite  obvious,  at  least, 
when  fairly  expounded,  entirely  satisfactory.  In  the  first 
place,  there  is  a  natural  tendency,  in  the  legislative  depart¬ 
ment,  to  intrude  upon  the  rights,  and  to  absorb  the  pow¬ 
ers,  of  the  other  departments  of  the  government.  If  the 
Executive  did  not  possess  this  qualified  negative,  he  might 
gradually  be  stripped  of  all  his  authority,  and  become, 
what  the  Governors  of  some  of  the  States  now  are,  a  mere 
pageant,  and  a  shadow  of  magistracy. 

§  150.  In  the  next  place,  the  power  is  important,  as 
an  additional  security  against  the  enactment  of  rash,  im¬ 
mature,  and  improper  laws.  In  the  third  place,  the  Pres¬ 
ident  may  fairly  be  deemed  the  representative  of  the 
whole  nation,  the  choice  being  produced  by  a  different 
modification  of  interests  and  opinions  and  votes,  from  that 
by  which  the  choice  of  either  branch  of  the  National  Le- 


MODE  OF  PASSING  LAWS. 


99 


\  ) 

gislature  is  produced,  either  that  representing  the  People, 
or  that  representing  the  States.  His  power,  therefore, 
of  a  qualified  negative,  being  founded  upon  the  supposition, 
that  lie  truly  represents  all  the  interests  and  opinions  of 
the  Union,  introduces  a  useful  element,  to  check  any  pre¬ 
ponderating  interest  of  any  section,  in  a  particular  meas¬ 
ure.  It  does  not,  like  an  absolute  negative,  suspend  legis¬ 
lation,  but  it  merely  refers  the  subject  back,  for  a  more 
deliberate  review  of  the  Senate  and  House.  If  two  thirds 
of  each  branch  still  concur  in  favor  of  the  measure,  it  be¬ 
comes  a  law.  Thus,  a  thorough  revision  of  the  measure 
is  guarantied  ;  and,  at  the  same  time,  the  deliberate  wish¬ 
es  of  the  States,  and  of  the  people,  cannot  be  disobeyed. 
If  two  thirds  of  each  branch  do  not  dissent  from  the  Pres¬ 
ident’s  opinion,  the  natural  inference  is,  that  the  measure 
is  not  so  far  beyond  all  reasonable  objections,  that  it  ought 
ordinarily  to  prevail.  The  negative  of  the  President  was 
undoubtedly  designed  by  the  Constitution  to  be  applied 
only  on  extraordinary  occasions  and  exigencies ;  and  if 
it  were  to  be  applied  to  the  common  course  of  legislation, 
it  might  be  fraught  with  great  public  mischiefs,  and  weak¬ 
en,  if  not  overthrow,  the  just  power  of  legislation  by 
Congress,  since  it  may  be  presumed,  that  it  can  rarely 
happen,  in  a  country,  having  such  a  diversity  of  interests, 
and  pursuits,  and  opinions,  as  jours,  that  a  clear  majority 
of  two  thirds  of  each  House  can  be  obtained  against  the 
known  wishes,  and  natural  influence  of  the  Executive  de¬ 
partment.  On  the  other  hand,  if  Congress  should  often 
be  driven,  by  the  frequent  use  of  it,  to  pass  laws,  in  op¬ 
position  to  the  President’s  negative,  it  would  gradually 
introduce  a  disregard  of  his  opinions,  and  a  hostile  oppo¬ 
sition  to  his  authority.  Such  a  state  of  things  would, 
certainly,  in  every  view,  he  most  inconvenient  and  unde¬ 
sirable.  The  evil,  however,  could  scarcely  be  of  a  very 
long  continuance  ;  for,  if  the  President  should  abuse  his 
power,  (as  certainly  he  sometimes  may,)  the  people  have 
the  proper  remedies  in  their  own  hands,  and  can  compel 
him  to  relinquish  office  at  no  distant  period. 

§  151.  But  the  qualified  negative  is  not  left  wholly 
without  restraint.  The  President  must  promptly  exer- 


100  CONSTITUTION  OF  THE  UNITED  STATES. 

cise  it,  within  ten  days,  excluding  Sunday  ;  otherwise^  the 
bill  becomes  a  law.  And,  on  the  other  hand,  Congress 
are  deprived  of  the  power  of  preventing  its  due  exercise 
by  a  hasty  adjournment  within  the  ten  days,  so  as  to  leave 
the  President  without  sufficient  time  for  due  deliberation. 
If  a  qualified  negative  is  to  be  allowed  at  all,  it  would 
seem  thus  to  be  as  much  restrained,  as  the  public  good  can 
require,  or,  at  least,  as  much,  as  its  proper  exercise  can 
justify. 

§  152.  The  remaining  clause  provides  a  like  regula¬ 
tion  in  regard  to  orders,  resolutions,  and  votes,  to  which 
the  concurrence  of  both  Houses  is  necessary.  It  is, — 
“  Every  order,  resolution,  or  vote,  to  which  the  concur¬ 
rence  of  the  Senate  and  House  of  Representatives  may 
be  necessary,  (except  on  a  question  of  adjournment,) 
shall  be  presented  to  the  President  of  the  United  States  ; 
and,  before  the  same  shall  take  effect,  shall  be  approved 
by  him,  or,  being  disapproved  by  him,  shall  be  repassed 
by  two  thirds  of  the  Senate  and  House  of  Representa¬ 
tives,  according  to  the  rules  and  limitations  prescribed  in 
the  case  of  a  bill.”  If  this  provision  had  not  been  made, 
Congress,  by  adopting  the  form  of  an  order,  or  resolution, 
or  vote,  instead  of  a  bill,  might  have  effectually  defeated 
the  President's  negative  in  many  important  portions  of 
legislation.  The  reason  of  the  exception  as  to  adjourn¬ 
ments,  is,  that  this  power  is  peculiarly  fit  to  be  acted 
upon  by  Congress,  according  to  their  own  discretion  ;  and, 
therefore,  it  is,  (as  we  have  seen,)  by  a  preceding  clause, 
vested  in  both  Houses,  and  devolves  on  the  President, 
only  in  cases  of  their  disagreement. 

§  153.  We  have  now  completed  the  review  of  the 
structure  and  organization  of  the  legislative  department  ; 
and,  it  has  been  shown,  that  it  is  admirably  adapted  for  a 
wholesome  and  upright  exercise  of  the  powers  confided 
to  it.  All  the  checks,  which  human  ingenuity  has  been 
able  to  devise,  or  at  least  all,  which,  with  reference  to  our 
habits,  our  institutions,  and  our  diversities  of  local  inter¬ 
ests,  seem  practicable,  to  give  perfect  operation  to  the 
machinery,  to  adjust  its  movements,  to  prevent  its  ec¬ 
centricities,  and  to  balance  its  forces  ;  all  these  have 


POWERS  OF  CONGRESS. - TAXATION. 


101 


been  introduced,  with  singular  skill,  ingenuity,  and  wis¬ 
dom,  into  the  arrangements.  Yet,  alter  all,  the  fabric 
may  fall  ;  for  the  work  of  man  is  perishable.  Nay,  it 
must  fall,  if  there  be  not  that  vital  spirit  in  the  people, 
which  can  alone  nourish,  sustain,  and  direct,  all  its  move¬ 
ments.  If  ever  the  day  shall  arrive,  in  which  the  best 
talents,  and  the  best  virtues  shall  be  driven  from  of¬ 
fice,  by  intrigue,  or  corruption,  by  the  denunciations  of 
the  press,  or  by  the  persecutions  of  party  factions,  legis¬ 
lation  will  cease  to  be  national.  It  will  be  wise  bv  acci- 

* 

dent,  and  bad  by  system. 


CHAPTER  XV. 

Powers  of  Congress. —  Taxation. 

§  1 54.  We  next  come  to  the  consideration  of  the  legis¬ 
lative  powers  conferred  on  Congress,  which  are  contain¬ 
ed  in  the  eighth  section  of  the  first  article.  The  first  clause 
is, — “  The  Congress  shall  have  power  to  lay  and  collect 
taxes,  duties,  imposts,  and  excises,  to  pay  the  debts,  and 
provide  for  the  common  defence  and  general  welfare  of 
the  United  States.  But  all  duties,  imposts,  and  excises 
shall  be  uniform  throughout  the  United  States.”  What 
is  the  true  interpretation  of  this  clause,  has  been  matter  of 
considerable  controversy  ;  that  is  to  say,  whether  the 
words,  “  Congress  shall  have  power  to  lay  and  collect 
taxes,  duties,  imposts,  and  excises,”  constitute  a  distinct 
clause  and  confer  a  substantive  independent  power  ;  and 
the  words,  “  to  pay  the  debts,  and  provide  for  the  com¬ 
mon  defence  and  general  welfare  of  the  United  States,” 
constitute  another,  distinct  clause,  and  substantive  and 
independent  power  ;  or,  whether  these  latter  words  are  a 
dependent  clause,  merely  qualifying  the  former  clause, 
and  so  the  whole  to  be  read  together,  as  if  the  words  stood 
thus, — “  Congress  shall  have  power  to  lay  and  collect 
taxes,  duties,  imposts,  and  excises,”  in  order  “to  pay  the 
public  debts,  and  to  provide  for  the  common  defence  and 

9# 


102  CONSTITUTION  OF  THE  UNITED  STATES. 

general  welfare;”  that  is  to  say,  Congress  shall  have  pow¬ 
er  to  lay  taxes,  &c.,  for  the  purpose  of  paying  the  public 
debts,  and  providing  for  the  common  defence  and  general 
welfare.  If  the  former  be  the  true  interpretation,  then  it 
is  obvious,  that  the  powers  of  the  National  Government, 
under  color  of  the  authority  of  the  clause  to  provide  for 
the  common  defence  and  general  welfare,  would  be  prac¬ 
tically  unlimited.  If  the  latter  be  the  true  interpretation, 
then  the  words  properly  amount  to  a  limitation  or  qualifi¬ 
cation  of  the  power  of  taxation  ;  so  that  no  taxes  can  be 
laid  by  Congress,  except  to  pay  the  debts,  and  to  provide 
for  the  common  defence  and  general  welfare.  The  latter 
seems  the  more  just  and  solid  interpretation  of  the  words, 
and  most  conformable  to  the  true  spirit  and  objects  of  the 
instrument. 

§  155.  The  necessity  of  the  power  of  taxation,  to  the 
vigorous  action  of  the  National  Government,  would  seem 
to  be  self-evident.  The  want  of  it,  was  one  of  the  prin¬ 
cipal  defects  under  the  Confederation.  A  National  Gov¬ 
ernment,  without  the  power  of  providing  for  its  own  ex¬ 
penditures,  charged  with  public  burdens  and  duties,  and 
yet  deprived  of  adequate  means  to  sustain  and  perform 
them,  would  soon  become  wholly  inert  and  imbecile.  It 
would  be  almost  as  absurd,  as  to  bind  a  man  immovably  to 
the  earth,  and  yet  at  the  same  time  to  require  him  to  walk 
abroad.  If,  then,  there  is  to  be  a  real,  effective  National 
Government,  there  must  be  a  power  of  taxation  given  to 
it,  adequate  to  its  wants,  its  objects,  and  its  duties.  The 
only  proper  remaining  inquiry  would  be,  whether  the 
power  of  taxation  should  be  limited  to  particular  speci¬ 
fied  objects  and  sources,  or  whether  the  power  should 
be  general  and  unlimited.  It  is  obvious,  that  if  limited 
to  particular  objects  and  sources,  those  objects  and  sour¬ 
ces  might  be  exhausted,  or  might  become  utterly  inade- 
equate  to  the  public  wants,  or  might  be  taxed  to  an 
extent,  which  would  be  ruinous  to  particular  employ¬ 
ments  and  interests.  Thus,  for  example,  if  the  power 
were  limited  to  mere  taxes  on  commerce,  and  the  nation 
should  be  engaged  in  war,  or  should  otherwise  be  in¬ 
volved  in  heavy  expenditures  in  the  course  of  unfortunate 


POWERS  OF  CONGRESS. —TAXATION.  103 

events,  the  very  attempt  to  defray  the  national  expendi¬ 
tures,  and  supply  the  national  wants,  by  taxes  on  com¬ 
merce,  might  amount  to  an  utter  annihilation  of  all  its 
value,  and  be  equivalent  to  a  total  prohibition  of  all  for¬ 
eign  trade.  The  same  would  be  equally  true,  if  the  pow¬ 
er  of  taxation  were  limited  exclusively  to  lands,  or  to  the 
products  of  agriculture,  or  manufactures,  or  to  taxes  on 
particular  articles,  such  as  wheat,  corn,  cotton,  flour,  rice, 
or  domestic  animals.  The  power  of  taxation,  on  the 
other  hand,  if  general  and  unrestricted,  will  leave  to  Con¬ 
gress  a  free  choice,  from  time  to  time,  to  select  such  arti¬ 
cles  for  taxation  as  shall  be  most  productive,  and  least 
burdensome,  and  thus  to  supply  the  public  wants,  without 
endangering  the  interests,  or  depressing  the  products,  of 
every  section  of  the  Country.  For  these  reasons,  the 
power  has  been  given  in  unlimited  terms  ;  and  the  wisdom 
of  the  provision  will  scarcely  now  be  called  in  question, 
by  any  considerate  mind. 

§156.  The  words  used,  are,  u  taxes,  duties,  imposts, 
and  excises.”  In  a  general  sense,  all  contributions,  im¬ 
posed  by  the  Government  upon  individuals  for  the  service 
of  the  State,  are  taxes,  by  whatever  name  they  may  be 
called.  In  this  sense,  they  are  usually  divided  into  two 
classes ; — direct  taxes,  under  which  head  are  included 
taxes  on  land,  and  other  real  estate,  and  poll,  or  capita¬ 
tion  taxes,  or  taxes  on  the  polls  or  persons  of  individuals  ; 
indirect  taxes,  under  which  head  are  classed  those,  which 
are  levied  only  upon  articles  of  consumption,  and,  of 
course,  of  which  every  person  pays  only  so  much,  as  he 
consumes  of  the  articles.  The  word  u  duties,”  is  often 
used  as  synonymous  with  taxes  ;  but  is  more  often  used 
as  synonymous  with  u  customs,”  which  are  taxes  levied 
upon  goods  and  merchandise,  which  are  exported  or  im¬ 
ported.  In  this  sense,  duties  are  equivalent  to  “  imposts,” 
although  the  latter  word  is  often  restrained  to  duties  on 
goods  and  merchandise,  which  are  imported  from  abroad. 
u  Excises,”  is  a  word,  generally  used  in  contradistinction 
to  “  imposts,”  in  its  restricted  sense  ;  and  is  applied  to 
internal  or  inland  impositions,  levied  sometimes  upon  the 
consumption  of  a  commodity,  sometimes  upon  the  retail 


104  CONSTITUTION  OP  THE  UNITED  STATES. 

sale  of  it,  and  sometimes  upon  the  manufacture  of  it. 
Thus,  a  tax,  levied  upon  goods  imported  from  a  foreign 
country,  is  generally  called  an  “  impost”  duty  ;  and  a  tax, 
levied  upon  goods  manufactured  or  sold  in  a  country,  is 
called  an  u  excise”  duty.  The  meanings  of  these  words, 
therefore,  often  run  into  each  other  ;  and  all  of  them  are 
used  in  the  Constitution,  to  avoid  any  ambiguity,  as  to 
any  one  of  them  being  used  in  a  general  sense,  or  in  a  re¬ 
stricted  sense,  which  might  involve  endless  doubts  as  to 
the  true  extent  of  the  constitutional  power. 

§  157.  The  power  of  taxation  is  not,  however,  unlim¬ 
ited  in  its  character.  The  taxes  levied  must  be  (as  we 
have  seen)  either  to  pay  the  public  debts,  or  to  provide 
for  the  common  defence  and  general  welfare  of  the  United 
States.  They  cannot  be  levied  solely  for  foreign  pur¬ 
poses,  or  in  aid  of  foreign  nations,  or  for  purposes  not  na¬ 
tional  in  their  objects  or  character.  In  the  next  place, 
all  direct  taxes  (as  we  have  also  seen)  are  to  be  ap¬ 
portioned  among  the  several  States,  in  the  same  manner 
as  Representatives,  that  is,  according  to  the  numbers  of 
the  population,  to  be  ascertained  in  the  particular  mode 
pointed  out  in  the  Constitution.  There  is  another  clause 
ol  the  Constitution,  on  the  same  subject,  which  declares, 
IC  That'no  capitation,  or  other  direct  tax,  shall  be  laid,  un¬ 
less  in  proportion  to  the  census,  or  enumeration,  herein 
before  directed  to  be  taken.”  There  do  not  seem  to  be 
any  other  cases,  in  which  a  direct  tax  can  be  laid  accord¬ 
ing  to  the  sense  of  the  Constitution,  except  by  a  direct 
tax  on  land  or  other  real  estate,  or  a  capitation  or  poll 
tax  ;  for  no  other  taxes  seem  capable  of  an  apportion¬ 
ment  among  the  States.  All  other  taxes,  that  is,  all 
u  duties,  imposts,  and  excises,”  are  required  to  be  uni¬ 
form  throughout  the  United  States.  The  reason  of  the 
latter  rule,  is,  to  prevent  Congress  from  giving  any  undue 
preference  to  the  pursuits  or  interests  of  one  State  over 
those  of  any  other.  It  might  otherwise  happen,  that  the 
agriculture,  commerce,  or  manufactures  of  one  State 
might  be  built  up  on  the  ruins  of  the  interests  of  another  ; 
and,  the  combination  of  a  few  States  in  Congress  might 
secure  a  monopoly  of  certain  branches  of  trade  and  busi¬ 
ness  exclusively  to  themselves. 


POWERS  OF  CONGRESS. - TAXATION. 


105 


§  158.  And  further,  to  enforce  this  uniformity,  and  to 
preserve  the  equal  rights  of  all  the  States,  it  is  declared, 
in  a  subsequent  clause  of  the  Constitution,  that  u  No  tax 
or  duty  shall  be  laid  on  articles  exported  from  any  State. 
No  preference  shall  be  given,  by  any  regulation  of  com* 
merce  or  revenue,  to  the  ports  of  one  State  o_yer  those  of 
another  ;  nor  shall  vessels,  bound  to  or  from  one  State, 
be  obliged  to  enter,  clear,  or  pay  duties  in  another.” 

§  159.  The  obvious  object  of  these  provisions  is,  to 
present  any  possibility  of  applying  the  power  to  lay  taxes, 
or  regulate  commerce,  injuriously  to  the  interests  of  any 
one  State,  so  as  to  favor  or  aid  another.  If  Congress 
were  allowed  to  lay  a  duty  on  exports  from  any  one  State, 
it  might  unreasonably  injure,  or  even  destroy,  the  staple 
productions,  or  common  articles  o'f  that  State.  The  in¬ 
equality  of  such  a  tax  would  be  extreme.  In  some  of  the 
States,  the  whole  of  their  means  result  from  agricultural 
exports.  In  others,  a  great  portion  is  derived  from  other 
sources  ;  from  external  fisheries  ;  from  freights  ;  and  from 
the  profits  of  commerce  in  its  largest  extent.  The  bur¬ 
den  of  such  a  tax  would,  of  course,  be  very  unequally  dis¬ 
tributed.  The  power  is,  therefore,  wholly  taken  away  to 
intermeddle  with  the  subject  of  exports.  On  the  other 
hand,  preferences  might  be  given  to  the  ports  of  one  State 
by  regulations,  either  of  commerce  or  of  revenue,  which 
might  confer  on  them  local  facilities  or  privileges  in  regard 
to  commerce,  or  to  revenue.  And  such  preferences  might 
be  equally  fatal,  if  indirectly  given  under  the  milder  form 
of  requiring  an  entry,  clearance,  or  payment  of  duties  in 
the  ports  of  any  State,  other  than  the  ports  of  the  State, 
lo  or  from  which  the  vessel  was  bound.  The  last  clause, 
therefore,  does  not  prohibit  Congress  from  requiring  an 
entry  or  clearance,  or  payment  of  duties  at  the  custom¬ 
house  on  importations  in  any  port  of  a  State,  to  or  from 
which  the  vessel  is  bound  ;  but  cuts  off  the  right  to  re¬ 
quire  such  acts  to  be  done  in  other  States,  to  which  the 
vessel  is  not  bound.  In  other  words,  it  cuts  oft'  the  power 
to  require  that  circuity  of  voyage,  which,  under  the  Brit¬ 
ish  colonial  system,  was  employed  to  interrupt  the  Amer¬ 
ican  commerce  before  the  Revolution.  No  American 


106  CONSTITUTION  OF  THE  UNITED  STATES. 

vessel  could  then  trade  with  Europe,  unless  through  a  eir 
cuitous  voyage  to  and  from  a  British  port. 

§  160.  But,  as  the  power  of  taxation  is  not  exclusive¬ 
ly  vested  in  the  National  Government,  but  may  also  be 
concurrently  exercised  by  the  State  Governments,  it  be¬ 
came  essential,  in  order  fully  to  effectuate  the  same  gen¬ 
eral  purposes,  and  to  prevent  any  State  from  securing  un¬ 
due  preferences  and  monopolies  in  its  own  favor,  to  lay 
some  restraints  upon  the  exercise  of  this  power  by  the 
States.  Accordingly  another  clause  in  the  Constitution 
declares, — “  No  State  shall,  without  the  consent  of  Con¬ 
gress,  lay  any  imposts  or  duties  on  imports,  or  exports, 
except  what  may  be  absolutely  necessary  for  executing  its 
inspection  laws.  And  the  net  produce  of  all  duties  and 
imposts,  laid  by  any  State  on  imports  and  exports,  shall 
be  for  the  use  of  the  treasury  of  the  United  States  ;  and 
all  such  laws  shall  be  subject  to  the  revision  of  Congress. 
No  State  shall,  without  the  consent  of  Congress,  lay  any 
tonnage  duty.”  A  petty  warfare  of  regulation  among  the 
States  is  thus  prevented,  which  might  otherwise  rouse  re¬ 
sentments,  and  create  dissensions,  dangerous  to  the  peace 
and  harmony  of  the  Union.  The  exceptions  in  favor  of 
inspection  laws,  to  a  limited  extent,  is  for  the  purpose  of 
enabling  each  State  to  improve  the  quality  of  articles, 
produced  by  the  labor  and  industry  of  its  own  inhabitants  ; 
and  thus  to  fit  them  better  for  exportation,  as  well  as  for 
domestic  use.  Yet,  even  here,  the  superintending  power 
of  Congress  is  reserved,  lest,  under  color  of  such  laws, 
attempts  should  be  made  to  injure  the  interests  of  other 
States.  The  net  produce  of  all  such  duties  and  imposts 
is  to  be  for  the  use  of  the  National  treasury  ;  and  the 
laws  themselves,  by  which  they  are  imposed,  are  subject 
to  the  revision  of  Congress.  Thus,  the  temptations  on  the 
part  of  any  State  to  levy  heavy  inspection  duties  are  ma¬ 
terially  diminished,  and  an  effectual  remedy  is  provided  to 
meet  any  intentional,  or  accidental  excess.  Having  thus 
brought  together  all  the  various,  but  scattered  articles  of 
the  Constitution,  on  the  subject  of  taxation,  the  subject 
may  be  dismissed  with  the  single  remark,  that  as  no  power 
is  more  likely,  in  its  abuse,  to  be  detrimental  to  the  public- 


POWER  OVER  COMMERCE. 


107 


welfare,  so  no  one  is  guarded  with  more  care,  and  adjust¬ 
ed  with  more  anxious  deference  to  local  and  sectional  in¬ 
terests. 

§  161.  Notwithstanding,  however,  all  the  solicitude 
manifested  by  the  Constitution,  on  this  subject,  inasmuch 
as  the  power  of  taxation  is  concurrent  in  the  National  and 
State  Governments,  it  is  obvious,  that  many  nice  and  del¬ 
icate  questions  must  perpetually  arise  (as  indeed  some  have 
already  arisen)  as  to  the  time  and  boundaries  of  the  power 
and  rights  of  each  government.  For,  however  true  it 
may  be,  that  in  a  direct  conflict  between  the  constitu¬ 
tional  authority  of  the  Union  and  that  of  a  State,  the  for¬ 
mer  must  be  deemed  paramount  and  superior  in  its  obliga¬ 
tory  force  ;  yet  the  question  when,  and  how  far,  such  a 
conflict  does  in  fact  exist,  must  often  involve  many  diffi¬ 
cult  and  embarrassing  inquiries,  which  do  not  admit  of  any 
universal  solution. 


CHAPTER  XVI. 

Power  to  Borrow  Money ,  and  Regulate  Commerce . 

§  162.  The  next  power  of  Congress  is,  “to  bor¬ 
row  money  on  the  credit  of  the  United  States.”  This 
power,  also,  seems  indispensable  to  the  sovereignty  and 
existence  of  the  National  Government  ;  for  otherwise,  in 
times  of  great  public  dangers,  or  severe  public  calamities, 
it  might  be  impossible  to  provide,  adequately,  for  the  pub¬ 
lic  exigencies.  In  times  of  peace,  it  may  not,  ordinarily, 
be  necessary  for  the  expenditures  of  a  nation  to  exceed  its 
revenues.  But  the  experience  of  all  nations  must  convince 
us,  that,  in  times  of  war,  the  burdens  and  expenses  of  a 
single  year  may  more  than  equal  the  ordinary  revenue  of 
ten  years.  And,  even  in  times  of  peace,  there  are  occa¬ 
sions,  in  which  loans  may  be  the  most  facile,  convenient, 
and  economical  means  of  supplying  any  extraordinary  ex¬ 
penditure.  The  experience  of  the  United  States,  has 
already  shown  the  importance  of  the  power,  both  in  peace 


108  CONSTITUTION  OF  THE  UNITED  STATES. 

and  in  war.  Without  this  resource,  neither  the  war  of 
Independence,  nor  the  more  recent  war  with  Great  Brit¬ 
ain  could  have  been  successfully  carried  on,  or  terminated. 
And  the  purchase  of  Louisiana  was  by  the  same  means 
promptly  provided  for,  without  being  felt  by  the  nation,  in 
its  ordinary  fiscal  concerns. 

§  163.  The  next  power  of  Congress  is,  “  to  regu¬ 
late  commerce  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes.”  The  want  of  this 
power  to  regulate  commerce  was,  as  has  been  already 
suggested,  a  leading  defect  of  the  Confederation.  In  the 
different  States,  the  most  opposite  and  conflicting  regula¬ 
tions  existed  ;  each  pursued  its  own  real  or  supposed  local 
interests  ;  each  was  jealous  of  the  rivalry  of  its  neighbors  ; 
and  each  was  successively  driven  to  retaliatory  measures, 
in  order  to  satisfy  public  clamor,  or  to  alleviate  private 
distress.  In  the  end,  however,  all  their  measures  became 
utterly  nugatory,  or  mischievous,  engendering  mutual  hos¬ 
tilities,  and  prostrating  all  their  commerce  at  the  feet  of 
foreign  nations.  It  is  hardly  possible  to  exaggerate  the 
oppressed  and  degraded  state  of  domestic  commerce,  man¬ 
ufactures,  and  agriculture,  at  the  time  of  the  adoption  of 
the  Constitution.  Our  ships  were  almost  driven  from  the 
ocean  ;  our  work-shops  were  nearly  deserted  ;  our  me¬ 
chanics  were  in  a  starving  condition  ;  and  our  agriculture 
was  sunk  to  the  lowest  ebb.  These  were  the  natural  re¬ 
sults  of  the  inability  of  the  General  Government  to  regu¬ 
late  commerce,  so  as  to  prevent  the  injurious  monopolies 
and  exclusions  of  foreign  nations,  and  the  conflicting,  and 
often  ruinous  regulations  of  the  different  States.  If  du¬ 
ties  were  laid  by  one  State,  they  were  rendered  ineffec¬ 
tual  by  the  opposite  policy  of  another.  If  one  State  gave 
a  preference  to  its  own  ships  or  commerce,  it  was  coun¬ 
teracted  by  another.  If  one  State  endeavored  to  foster 
its  own  manufactures  by  any  measures  of  protection,  that 
made  it  an  object  of  jealousy  to  others  ;  and  brought  upon 
it  the  severe  retaliation  of  foreign  governments.  If  one 
State  was  peculiarly  favored  in  its  agricultural  products, 
that  constituted  an  inducement  with  others  to  load  them 
with  some  restrictions,  which  should  redress  the  inequality. 


POWER  OVER  COMMERCE. 


109 


It  was  easy  to  foresee,  that  this  state  of  things  could  not 
long  exist,  without  bringing  on  a  border  warfare,  and  a 
deep-rooted  hatred,  among  neighboring  States,  fatal  to  the 
Union,  and,  of  course,  fatal  also  to  the  liberty  of  every 
member  of  it. 

§  164.  The  power  “  to  regulate  foreign  commerce,’5 
enabled  the  government  at  once  to  place  the  whole  coun¬ 
try  upon  an  equality  with  foreign  nations  ;  to  compel  them 
to  abandon  their  narrow  and  selfish  policy  towards  us  ; 
and  to  protect  our  own  commercial  interests  against  their 
injurious  competitions.  The  power  to  regulate  commerce 
“among  the  several  States,”  in  like  manner,  annihilated 
the  causes  of  domestic  feuds  and  rivalries.  It  compelled 
every  State  to  regard  the  interests  of  each,  as  the  inter¬ 
ests  of  all;  and  thus  diffused  over  all  the  blessings  of  a 
free,  active,  and  rapid  exchange  of  commodities,  upon 
the  footing  of  perfect  equality.  The  power  to  regulate 
commerce  “with  the  Indian  tribes,”  wras  equally  ne¬ 
cessary  to  the  peace  and  safety  of  the  frontier  States. 
Experience  had  s  ho  urn  the  utter  impracticability  of  escap¬ 
ing  from  sudden  wars,  and  invasions,  on  the  part  of  these 
tribes ;  and  the  dangers  were  immeasurably  increased  by 
the  want  of  uniformity  of  regulations  and  control  in  the 
intercourse  with  them.  Indeed,  in  nothing  has  the  pro¬ 
found  wisdom  of  the  framers  of  the  Constitution  been 
more  displayed,  than  in  the  grant  of  this  power  to  the 
Union.  By  means  of  it,  the  country  has  risen  from  pov¬ 
erty  to  opulence  ;  from  a  state  of  narrow  and  scanty  re¬ 
sources  to  an  ample  national  revenue  ;  from  a  feeble,  and 
disheartening  intercourse  and  competition  with  foreign  na¬ 
tions,  in  agriculture,  commerce,  manufactures,  and  popu¬ 
lation,  to  a  proud,  and  conscious  independence  in  arts,  in 
numbers,  in  skill,  and  in  civil  polity. 

§  165.  In  considering  this  clause  of  the  Constitution, 
several  important  inquiries  are  presented.  In  the  first 
place,  wdiat  is  the  natural  import  of  the  terms  ;  in  the 
next  place,  how  far  the  power  is  exclusive  of  that  of 
the  States  ;  in  the  third  place,  to  wdiat  purposes  and  for 
what  objects  the  powrer  may  be  constitutionally  applied  ; 
and  in  the  fourth  place,  what  are  the  true  nature  and  ex- 

10  XIII. 


110  CONSTITUTION  OF  THE  UNITED  STATES. 

tent  of  the  power  to  regulate  commerce  with  the  Indian 
tribes. 

§  166.  In  the  first  place,  then,  what  is  the  constitutional 
meaning  of  the  words,  u  to  regulate  commerce  for  the 
Constitution  being  (as  has  been  aptly  said)  one  of  enu¬ 
meration,  and  not  of  definition,  it  becomes  necessary,  in 
order  to  ascertain  the  extent  of  the  power,  to  ascertain 
the  meaning  of  the  words.  The  power  is,  to  regulate  ; 
that  is,  to  prescribe  the  rule,  by  which  commerce  is  to  be 
governed.  The  subject  to  be  regulated,  is  commerce.  Is 
that  limited  to  traffic,  to  buying  and  selling,  or  the  inter¬ 
change  of  commodities  ?  Or  does  it  comprehend  navi¬ 
gation  and  intercourse  ?  If  the  former  construction  is 
adopted,  then  a  general  term,  applicable  to  many  objects, 
is  restricted  to  one  of  its  significations.  If  the  latter,  then 
a  general  term  is  retained  in  its  general  sense.  To  adopt 
the  former,  without  some  guiding  grounds  furnished  by  the 
context,  or  the  nature  of  the  power,  would  be  improper. 
The  words  being  general,  the  sense  must  be  general,  also, 
and  embrace  all  subjects  comprehended  under  them,  un¬ 
less  there  be  some  obvious  mischief,  or  repugnance  to 
other  clauses,  to  limit  them.  In  the  present  case,  there  i3 
nothing  to  justify  such  a  limitation.  Commerce  undoubt¬ 
edly  is  traffic  ;  but  it  is  something  more.  It  is  inter¬ 
course.  It  describes  the  commercial  intercourse  between 
nations,  and  parts  of  nations,  in  all  its  branches  ;  and  is 
regulated  by  prescribing  rules  for  carrying  on  that  inter¬ 
course.  The  mind  can  scarcely  conceive  a  system  for 
regulating  commerce  between  nations,  which  shall  exclude 
all  laws  concerning  navigation  ;  which  shall  be  silent  on 
the  admission  of  the  vessels  of  one  nation  into  the  ports  of 
another  ;  and  be  confined  to  prescribing  rules  for  the  con¬ 
duct  of  individuals  in  the  actual  employment  of  buying  and 
selling,  or  barter.  It  may,  therefore,  be  safely  affirmed, 
that  the  terms  of  the  Constitution  have,  at  all  times,  been 
understood  to  include  a  power  over  navigation,  as  well  as 
over  trade,  over  intercourse,  as  well  as  over  traffic.  It 
adds  no  small  strength  to  this  interpretation,  that  the  prac¬ 
tice  of  all  foreign  countries,  as  well  as  of  our  own,  has 
uniformly  conformed  to  this  view  of  the  subject. 


POWER  OVER  COMMERCE. 


ill 


§  167.  The  next  inquiry  is,  whether  this  power  to  reg¬ 
ulate  commerce,  is  like  that  to  lay  taxes.  The  latter, 
may  well  be  concurrent,  while  the  former,  is  exclusive, 
resulting  from  the  different  nature  of  the  two  powers. 
The  power  of  Congress  in  laying  taxes  is  not  neces¬ 
sarily,  or  naturally  inconsistent  with  that  of  the  States. 
Each  may  lay  a  tax  on  the  same  property,  without  inter¬ 
fering  with  the  action  of  the  other  ;  for  taxation  is  but 
taking  small  portions  from  the  mass  of  property,  which  is 
susceptible  of  almost  infinite  division.  In  imposing  taxes 
for  State  purposes,  a  State  is  not  doing  what  Congress  is 
empowered  to  do.  Congress  is  not  empowered  to  tax 
for  those  purposes,  which  are  within  the  exclusive  prov¬ 
ince  of  the  States.  When,  then,  each  government  exer¬ 
cises  the  power  of  taxation,  neither  is  exercising  the  power 
of  the  other.  But  when  a  State  proceeds  to  regulate  com¬ 
merce  with  foreign  nations,  or  among  the  several  States, 
it  is  exercising  the  very  power,  which  is  granted  to  Con¬ 
gress  ;  and  is  doing  the  very  thing,  which  Congress  is  au¬ 
thorized  to  do.  There  is  no  analogy,  then,  between  the 
power  of  taxation,  and  the  power  of  regulating  commerce. 

§  168.  Nor  can  any  power  be  inferred  in  the  States,  to 
regulate  commerce,  from  other  clauses  in  the  Constitution, 
or  the  acknowledged  rights  exercised  by  the  States.  The 
Constitution  has  prohibited  the  States  from  laying  any  im¬ 
post  or  duty  on  imports  or  exports  ;  but  this  does  not 
admit,  that  the  State  might  otherwise  have  exercised  the 
power,  as  a  regulation  of  commerce.  The  laying  of  such 
imposts  and  duties  may  be,  and  indeed  often  is,  used,  as 
a  mere  regulation  of  commerce,  by  governments  possess¬ 
ing  that  power.  But  the  laying  of  such  imposts  and  du¬ 
des  is  as  certainly,  and  more  usually,  a  right  exercised  as 
a  part  of  the  power  to  lay  taxes  ;  and  with  this  latter 
power  the  States  are  clearly  intrusted.  So  that  the  pro¬ 
hibition  is  an  exception  from  the  acknowledged  power  of 
the  State  to  lay  taxes.,  and  not  from  the  questionable  power 
to  regulate  commerce.  Indeed,  the  Constitution  treats 
these  as  distinct  and  independent  powers.  The  same 
remarks  apply  to  a  duty  on  tonnage. 

§  169..  In  the  next  place,  to  what  extent,  and  for  what 


112  CONSTITUTION  OF  THE  UNITED  STATES. 


objects  and  purposes,  the  power  to  regulate  commerce 
may  be  constitutionally  applied. 

§170.  And  first,  among  the  States.  It  is  not  doubted, 
that  it  extends  to  the  regulation  of  navigation,  and  to  the 
coasting  trade  and  fisheries,  within,  as  well  as  without 
any  State,  wherever  it  is  connected  with  the  commerce  or 
intercourse  with  any  other  State,  or  with  foreign  nations. 
It  extends  to  the  regulation  and  government  of  seamen 
on  board  of  American  ships  ;  and  to  conferring  privileges 
upon  ships  built  and  owned  in  the  United  States,  in  do¬ 
mestic,  as  well  as  in  foreign  trade.  It  extends  to  quarantine 
laws,  and  pilotage  laws,  and  wrecks  of  the  sea.  It  ex¬ 
tends,  as  w:ell  to  the  navigation  of  vessels  engaged  in  car¬ 
rying  passengers,  and  whether  steam  vessels  or  of  any 
other  description,  as  to  the  navigation  of  vessels  engaged 
in  traffic  and  general  coasting  business.  It  extends  to 
the  laying  of  embargoes,  as  well  on  domestic,  as  on  for¬ 
eign  voyages.  It  extends  to  the  construction  of  light¬ 
houses,  the  placing  of  buoys  and  beacons,  the  removal  of 
obstructions  to  navigation  in  creeks,  rivers,  sounds,  and 
bays,  and  the  establishment  of  securities  to  navigation 
against  the  inroads  of  the  ocean.  It  extends  also  to  the 
designation  of  a  particular  port  or  ports  of  entry  and  deliv¬ 
ery  for  the  purposes  of  foreign  commerce.  These  pow¬ 
ers  have  been  actually  exerted  by  the  National  Government 
under  a  system  of  laws,  many  of  which  commenced  with 
the  early  establishment  of  the  Constitution  ;  and  they  have 
continued  unquestioned  unto  our  day,  if  not  to  the  utmost 
range  of  their  reach,  at  least  to  that  of  their  ordinary  ap¬ 
plication. 

§  171.  Many  of  the  like  powers  have  been  applied  in 
the  regulation  of  foreign  commerce.  The  commercial 
system  of  the  United  States  has  also  been  employed  some¬ 
times  for  the  purpose  of  revenue  ;  sometimes  for  the  pur¬ 
pose  of  prohibition  ;  sometimes  for  the  purpose  of  retali¬ 
ation  and  commercial  reciprocity  ;  sometimes  to  lay  em¬ 
bargoes  ;  sometimes  to  encourage  domestic  navigation, 
and  the  shipping  and  mercantile  interest,  by  bounties,  by 
discriminating  duties,  and  by  special  preferences  and  priv¬ 
ileges  ;  and  sometimes  to  regulate  intercourse  with  a  view 


POWER  OVER  COMMERCE. 


113 


to  mere  political  objects,  such  as  to  repel  aggressions, 
increase  the  pressure  of  war,  or  vindicate  the  rights  of 
neutral  sovereignty.  In  all  these  cases,  the  right  and 
duty  have  been  conceded  to  the  National  Government  by 
the  unequivocal  voice  of  the  people. 

§  172.  It  may  be  added,  that  Congress  have  also, 
from  the  earliest  period  of  the  government,  applied  the 
same  power  of  regulating  commerce  for  the  purpose  of 
encouraging  and  protecting  domestic  manufactures  ;  and 
although  this  application  of  it  has  been  recently  contested, 
yet  Congress  have  never  abandoned  the  exercise  of  it  for 
such  a  purpose.  Indeed,  if  Congress  does  not  possess 
the  power  to  encourage  domestic  manufactures,  by  regu¬ 
lations  of  commerce,  it  is  a  power,  that  is  utterly  annihi¬ 
lated  ;  for  it  is  admitted,  on  all  sides,  that  the  States  do 
not  possess  it.  And  America  would  then  present  the 
singular  spectacle  of  a  nation  voluntarily  depriving  itself, 
in  the  exercise  of  its  admitted  rights  of  sovereignty,  of  all 
means  of  promoting  some  of  its  most  vital  interests. 

§  173.  In  respect  to  trade  with  the  Indian  tribes.  Ante¬ 
cedently  to  the  American  Revolution,  the  authority  to  reg¬ 
ulate  trade  and  intercourse  with  the  Indian  tribes,  whether 
they  were  within,  or  without  the  boundaries  of  the  Colo¬ 
nies,  was  understood  to  belong  to  the  prerogative  of  the 
British  crown.  And  after  the  American  Revolution,  the 
like  power  would  naturally  fall  to  the  Federal  Government, 
with  a  view  to  the  general  peace  and  interests  of  all  the 
States.  Two  restrictions,  however,  upon  the  power,  were, 
by  express  terms,  incorporated  into  the  Confederation, 
which  occasioned  endless  embarrassments  and  doubts. 
The  power  of  Congress  was  restrained  to  Indians,  not 
members  of  any  of  the  States  ;  and  was  not  to  be  exercised 
so  as  to  violate  or  infringe  the  legislative  right  of  any  State, 
within  its  own  limits.  What  description  of  Indians  were 
to  be  deemed  members  of  a  State,  was  never  settled  under 
the  Confederation  ;  and  wTas  a  question  of  frequent  per¬ 
plexity  and  contention  in  the  federal  councils.  And  how 
the  trade  with  Indians,  though  not  members  of  a  State, 
yet  residing  within  its  legislative  jurisdiction,  was  to  be 
regulated  bv  an  external  authority,  without  so  far  intrud- 

10* 


114  CONSTITUTION  OF  THE  UNITED  STATES. 

ing  on  the  internal  rights  of  legislation,  was  absolutely  in¬ 
comprehensible.  In  this  case,  as  in  some  other  cases, 
the  Articles  of  Confederation  inconsiderately  endeavored 
to  accomplish  impossibilities  ;  to  reconcile  a  partial  sov¬ 
ereignty  in  the  Union,  with  complete  sovereignty  in  the 
States  ;  to  subvert  a  mathematical  axiom,  by  taking  away 
a  part,  and  letting  the  whole  remain.  The  Constitution 
has  wisely  disembarrassed  the  power  of  these  two  limita¬ 
tions  ;  and  has  thus  given  to  Congress,  as  the  only  safe 
and  proper  depositary,  the  exclusive  power,  which  be¬ 
longed  to  the  Crown  in  the  ante-revolutionary  times  ;  a 
power  indispensable  to  the  peace  of  the  States,  and  to  the 
just  preservation  of  the  rights  and  territory  of  the  Indians. 


CHAPTER  XVIL 

Naturalization ,  Bankruptcy ,  and  Coinage  of  Money . 

§  174.  The  next  power  of  Congress  is,  u  to  establish 
a  uniform  rule  of  naturalization,  and  uniform  laws  on  the 
subject  of  bankruptcies  throughout  the  States.”  The 
power  of  naturalization  is,  with  great  propriety,  confided 
to  Congress,  since,  if  left  to  the  States,  they  might  natu¬ 
ralize  foreigners  upon  very  different,  and  even  upon  oppo¬ 
site  systems  ;  and,  as  the  citizens  of  all  the  States  have 
common  privileges  in  all,  it  would  thus  be  in  the  power 
of  any  one  State  to  defeat  the  wholesome  policy  of  all 
the  others  in  regard  to  this  most  important  subject.  Con¬ 
gress  alone  can  have  power  to  pass  uniform  laws,  obliga¬ 
tory  on  all  the  States  :  and  thus  to  adopt  a  system,  which 
shall  secure  all  of  them  against  any  dangerous  results  from 
the  indiscriminate  admission  of  foreigners  to  the  right  of 
citizenship  upon  their  first  landing  on  our  shores.  And, 
accordingly,  this  power  is  exclusive  in  Congress. 

§  175.  The  power  to  pass  bankrupt  laws  is  equally 
important,  and  proper  to  be  intrusted  to  Congress,  al¬ 
though  it  is  greatly  to  be  regretted,  that  it  has  not,  except 
for  a  very  brief  period,  been  acted  upon  by  Congress. 


NATURALIZATION. —BANKRUPTCY. 


115 


Bankrupt  and  insolvent  laws,  when  properly  framed,  have 
two  great  objects  in  view  ;  first,  to  secure  to  honest  but 
unfortunate  debtors  a  discharge  from  debts,  which  they 
are  unable  to  pay,  and  thus  to  enable  them  to  begin  anew 
in  the  career  of  industry,  without  the  discouraging  fear, 
that  it  will  be  wholly  useless  ;  secondly,  to  secure  to  cred¬ 
itors  a  full  surrender,  and  equal  participation,  of  and  in  the 
effects  of  their  debtors,  when  they  have  become  bank¬ 
rupt,  or  failed  in  business.  On  the  one  hand,  such  laws 
relieve  the  debtor  from  perpetual  bondage  to  his  creditors, 
in  the  shape,  either  of  an  unlimited  imprisonment  for  his 
debts,  or  of  an  absolute  right  to  appropriate  all  his  future 
earnings.  The  latter  course  obviously  destroys  all  en¬ 
couragement  to  future  enterprise  and  industry,  on  the  part 
of  the  debtor  ;  the  former  is,  if  possible,  more  harsh,  se¬ 
vere,  and  indefensible  ;  for  it  makes  poverty,  in  itself 
sufficiently  oppressive,  the  cause  or  occasion  of  penalties 
and  punishments. 

§  176.  It  is  obvious,  that  no  single  State  is  competent 
to  pass  a  uniform  system  of  bankruptcy,  which  shall  ope¬ 
rate  throughout  all  of  them.  It  can  have  no  power  to 
discharge  debts,  contracted  in  other  States  ;  or  to  bind 
creditors  in  other  States.  And  it  is  hardly  within  the 
range  of  probability,  that  the  same  system  should  be  uni¬ 
versally  adopted,  and  persevered  in  permanently,  by  all 
the  States.  In  fact,  before,  as  well  as  since  the  adoption 
of  the  Constitution,  the  States  have  had  very  different 
systems  on  the  subject,  exhibiting  a  policy  as  various  and 
sometimes  as  opposite,  as  could  well  be  imagined.  The 
future  will,  in  all  human  probability,  be,  as  the  past.  And 
the  utter  inability  of  any  State  to  discharge  contracts  made 
within  its  own  territorial  limits,  before  the  passage  of  its 
own  laws,  or  to  discharge  any  debts  whatever,  contracted 
in  other  States,  or  due  to  the  citizens  thereof,  must  per¬ 
petually  embarrass  commercial  dealings,  discourage  indus¬ 
try,  and  diminish  private  credit  and  confidence.  The 
remedy  is  in  the  hands  of  Congress.  It  has  been  given 
for  wise  ends,  and  has  hitherto  been  strangely  left  without 
any  efficient  operation. 

§  177.  The  next  power  of  Congress  is,  to  u  coin  mon- 


116  CONSTITUTION  OF  THE  UNITED  STATES. 

ey,  regulate  the  value  thereof,  and  of  foreign  coins,  and 
fix  the  standard  of  weights  and  measures.”  The  object 
of  the  power  over  the  coinage  and  currency  of  the  country 

is,  to  produce  uniformity  in  the  value  of  money  throughout 
the  Union,  and  thus  to  save  us  from  the  embarrassments 
of  a  perpetually  fluctuating  and  variable  currency.  If 
each  State  might  coin  money,  as  it  pleased,  there  would 
be  no  security  for  any  uniform  coinage,  or  any  uniform 
standard  of  value  ;  and  a  great  deal  of  base  and  false  coin, 
would  constantly  be  thrown  into  the  market.  The  evils 
from  this  cause  are  abundantly  felt  among  the  small  prin¬ 
cipalities  of  continental  Europe.  The  power  to  fix  the 
standard  of  weights  and  measures  is  a  matter  of  great  pub¬ 
lic  convenience,  although  it  has  hitherto  remained  in  a 
great  measure  dormant.  The  introduction  of  the  decimal 
mode  of  calculation,  in  dollars  and  cents,  instead  of  the 
old  and  awkward  system  of  pounds,  shillings,  and  pence, 
has  been  found  of  great  public  convenience,  although  it 
was  at  first  somewhat  unpopular.  A  similar  system  in 
weights  and  measures  has  been  thought  by  many  statesmen 
to  have  advantages  equally  great  and  universal.  At  all 
events,  the  power  is  safe  in  the  hands  of  Congress,  and 
may  hereafter  be  acted  upon,  whenever  either  our  foreign, 
or  our  domestic  intercourse,  shall  imperiously  require  a 
new  system. 

§  178.  The  next  power  of  Congress  is,  u  to  provide 
for  the  punishment  of  counterfeiting  the  securities,  and 
current  coin  of  the  United  States.”  This  is  a  natural, 
and,  in  a  just  view,  an  indispensable  appendage  to  the 
power  to  borrow  money,  and  to  coin  money.  Without 

it,  there  would  be  no  adequate  means  for  the  General 
Government  to  punish  frauds  or  forgeries,  detrimental  to 
its  own  interests,  and  subversive  of  public  and  private 
confidence. 


POST  OFFICE. - PATENTS  FOR  INVENTIONS.  117 


CHAPTER  XVIII. 

Post  Office  and  Post  Roads. — Patents  for  Inventions . 

§  179.  The  next  power  of  Congress,  is  u  to  establish 
post  offices,  and  post  roads.”  This  power  is  peculiarly 
appropriate  to  the  National  Government,  and  would  be 
at  once  unwieldy,  dilatory,  and  irregular  in  the  hands  of 
the  States,  from  the  utter  impracticability  of  adopting  any 
uniform  system  of  regulations  for  the  whole  continent,  and 
from  the  inequality  of  the  burdens,  and  benefits  of  any 
local  system,  among  the  several  States,  in  proportion  to 
their  own  expenditures.  Under  the  auspices  of  the  Gen¬ 
eral  Government,  the  post  office  has  already  become  one 
of  the  most  beneficent,  and  useful  of  our  national  estab¬ 
lishments.  It  circulates  intelligence,  of  a  commercial, 
political,  literary,  and  private  nature,  with  incredible  speed 
and  regularity.  It  thus  administers,  in  a  very  high  degree, 
to  the  comfort,  the  interests,  and  the  necessities  of  per¬ 
sons  in  every  rank  and  station  of  life.  It  is  not  less  ef¬ 
fective,  as  an  instrument  of  the  government  ;  enabling  it, 
in  times  of  peace  and  war,  to  send  its  orders,  execute  its 
measures,  transmit  its  funds,  and  regulate  its  operations, 
with  a  promptitude  and  certainty,  which  are  of  incalcula¬ 
ble  importance,  in  point  of  economy,  as  well  as  of  ener¬ 
gy.  The  rapidity  of  its  movements  has  been,  in  a  gen¬ 
eral  view,  doubled  within  the  last  twenty  years  ;  and  there 
were,  at  the  close  of  the  year  1838,  twelve  thousand 
five  hundred  and  fifty-three  post  offices  in  the  United 
States  ;  and  mails  then  travelled,  in  various  directions  and 
on  various  routes,  more  than  one  hundred  and  thirty-four 
thousand  miles.  The  net  amount  of  postage,  in  the  same 
year,  amounted  to  little  short  of  three  millions  of  dollars. 
It  seems  wholly  unnecessary  to  vindicate  the  grant  of  a 
power,  which  has  been  thus  demonstrated  to  be  of  the 
highest  value  to  all  the  people  of  the  Union. 

§  180.  The  next  power  of  Congress  is,  a  to  promote 


118  CONSTITUTION  OF  THE  UNITED  STATES. 

the  progress  of  science,  and  the  useful  arts,  by  securing, 
for  limited  times,  to  authors,  and  inventors,  the  exclusive 
right  to  their  respective  writings,  and  discoveries.”  The 
utility  of  this  power  has  never  been  questioned.  Indeed, 
if  authors,  or  inventors,  are  to  have  any  real  property  or 
interest  in  their  writings,  or  discoveries,  it  is  manifest, 
that  the  power  of  protection  must  be  given  to,  and  admin¬ 
istered  by,  the  General  Government.  A  copy-right,  or 
patent,  granted  by  a  single  State,  might  be  violated  with 
impunity  by  every  other  ;  and,  indeed,  adverse  titles  might 
at  the  same  time  be  set  up  in  different  States  to  the  same 
thing,  each  of  which,  according  to  the  laws  of  the  State, 
in  which  it  originated,  might  be  equally  valid.  No  class 
of  men  are  more  meritorious,  or  are  better  entitled  to 
public  patronage,  than  authors  and  inventors.  They  have 
rarely  obtained,  as  the  histories  of  their  lives  sufficiently 
establish,  any  due  encouragement  and  reward  for  their  in¬ 
genuity  and  public  spirit.  They  have  often  languished 
in  poverty,  and  died  in  neglect,  while  the  world  has  de¬ 
rived  immense  wealth  from  their  labors,  and  science  and 
the  arts  have  reaped  unbounded  advantages  from  their 
discoveries.  They  have  but  too  often  possessed  a  barren 
fame,  and  seen  the  fruits  of  their  genius  gathered  by  those, 
who  have  not  blushed  to  purloin,  what  they  have  been 
unable  to  create.  It  is,  indeed,  but  a  poor  reward,  to 
secure  to  authors  and  inventors,  for  a  limited  period,  only, 
an  exclusive  title  to  that,  which  is,  in  the  noblest  sense, 
their  own  property  ;  and  to  require  it  ever  afterwards  to  be 
dedicated  to  the  public.  But,  such  as  the  provision  is,  it 
is  impossible  to  doubt  its  justice,  or  its  policy,  so  far  as 
it  aims  at  their  protection  and  encouragement. 

§  181.  The  power,  in  its  terms,  is  confined  to  authors 
and  inventors  ;  and  cannot  be  extended  to  the  introducers 
of  any  new  works  or  inventions.  This  has  been  thought, 
by  some  persons  of  high  distinction,  tq  be  a  defect  in  the 
Constitution.  But  perhaps  the  policy  of  further  extending 
the  right  is  questionable  ;  and,  at  all  events,  the  restriction 
has  not  hitherto  operated  as  any  discouragement  of  science 
or  the  arts.  It  has  been  doubted,  whether  Congress  has 
authority  to  decide  the  fact,  that  a  person  is  an  author  or 


PUNISHMENT  OF  PIRACIES  AND  FELONIES.  119 

inventor,  in  the  sense  of  the  Constitution,  so  as  to  preclude 
that  question  from  judicial  inquiry.  But,  at  all  events, 
such  a  construction  ought  never  to  be  put  upon  the  terms 
of  any  general  act  in  favor  of  a  particular  inventor,  unless 
:t  be  inevitable. 

*  §  182.  The  next  power  of  Congress  is,  u  to  constitute 
tribunals  inferior  to  the  Supreme  Court.”  But  this  will 
hereafter  properly  come  under  review,  in  considering  the 
structure  and  powers  of  the  Judicial  department. 


i 


CHAPTER  XIX. 

Punishment  of  Piracies  and  Felonies. — Declaration  of 

War. 

§  183.  The  next  power  of  Congress  is,  c<  to  define, 
and  punish  piracies  and  felonies,  committed  on  the  high 
seas,  and  offences  against  the  law  of  nations.”  Piracy  is 
commonly  defined  to  be  robbery,  or  forcible  depredation 
upon  the  high  seas  with  intent  to  steal.  But  u  felony” 
is  a  term,  not  so  exactly  understood  or  defined.  It  is 
usually  applied  to  designate  capital  offences,  that  is,  of¬ 
fences  punishable  with  death  ;  but  its  true  original  mean¬ 
ing  seems  to  be,  to  designate  such  offences  as  are  by  the 
common  law  punished  by  forfeiture  of  lands  and  goods. 
u  Offences  against  the  law  of  nations”  are  still  less  clearly 
defined  ;  and  therefore,  as  to  these,  as  well  as  to  felonies, 
the  power  to  define,  as  well  as  to  punish,  is  very  properly 
given.  As  the  United  States  are  responsible  to  foreign 
governments  for  the  conduct  of  our  own  citizens  on  the 
high  seas,  and  as  the  power  to  punish  offences  committed 
there  is  also  indispensable  to  the  due  protection  and  sup¬ 
port  of  our  navigation  and  commerce,  and  the  States, 
separately,  are  incapable  of  affording  adequate  redress  in 
such  cases,  the  power  is  appropriately  vested  in  the  Gen¬ 
eral  Government. 

§  184.  What  the  true  meaning  of  the  phrase  u  high 
seas,”  is,  within  the  intent  of  this  clause,  does  not  seem 


120  CONSTITUTION  OF  THE  UNITED  STATES. 

to  be  matter  of  any  serious  doubt.  In  order  to  understand 
it,  resort  must  be  had  to  the  common  law,  in  which,  the 
definition  of  “high  seas”  is,  that  the  high  seas  embrace 
not  only  all  the  waters  of  the  ocean,  which  are  out  of  sight 
of  land,  but  also  all  waters  on  the  seacoast  below  low- 
water  mark,  whether  those  waters  be  within  the  territorial 
sovereignty  of  a  foreign  nation  or  of  a  domestic  State. 
It  has  accordingly  been  held,  by  our  ablest  law  writers, 
that  the  main  or  high  seas  properly  begin  at  low-water 
mark. 

§  185.  The  next  power  of  Congress  is,  u  to  declare 
war,  grant  letters  of  marque  and  reprisal,  and  make  rules 
concerning  captures  on  land  and  water.”  That  the  power 
to  declare  war  should  belong  exclusively  to  the  National 
Government,  would  hardly  seem  matter  of  controversy. 
If  it  belonged  to  the  States  severally,  it  would  be  in  the 
power  of  any  one  of  them,  at  any  time,  to  involve  the 
whole  Union  in  hostilities  with  a  foreign  country,  not  only 
against  their  interests,  but  against  their  judgement.  Their 
very  existence  might  thus  be  Jeoparded  without  their  con¬ 
sent,  and  their  liberties  sacrificed  to  private  resentment, 
or  popular  prejudice.  The  power  cannot,  therefore,  be 
safely  deposited,  except  in  the  General  Government ;  and, 
if  in  the  General  Government,  it  ought  to  belong  to  Con¬ 
gress,  where  all  the  States  and  all  the  people  of  the  States 
are  represented  ;  and  where  a  majority  of  both  Houses 
must  concur,  to  authorize  the  declaration.  War,  indeed, 
is,  in  its  mildest  form,  so  dreadful  a  calamity  ;  it  destroys 
so  many  lives,  wastes  so  much  property,  and  introduces 
so  much  moral  desolation  ;  that  nothing  but  the  strongest 
state  of  necessity  can  justify,  or  excuse  it.  In  a  repub¬ 
lican  government,  it  should  never  be  resorted  to,  except 
as  a  last  expedient  to  vindicate  its  rights  ;  for  military 
power  and  military  ambition  have  but  too  often  fatally  tri¬ 
umphed  over  the  liberties  of  the  people. 

§186.  The  power  to  declare  war,  if  vested  in  the  Gen¬ 
eral  Government,  might  have  been  vested  in  the  President, 
or  in  the  Senate,  or  in  both,  or  jn  the  House  of  Repre¬ 
sentatives  alone.  In  monarchies,  the  power  is  ordinarily 
vested  in  the  Executive.  But  certainly,  in  a  republic, 


DECLARATION  OF  WAR. 


121 


the  chief  magistrate  ought  not  to  be  clothed  with  a  power 
so  summary,  and,  at  the  same  time,  so  full  of  dangers  to  the 
public  interest  and  the  public  safety.  It  would  be  to  com¬ 
mit  the  liberties,  as  well  as  the  rights  of  the  people,  to  the 
ambition,  or  resentment,  or  caprice,  or  rashness  of  a  single 
mind.  If  the  power  were  confided  to  the  Senate,  either 
alone,  or  in  connection  with  the  Executive,  it  might  be 
more  safe  in  its  exercise,  and  the  less  liable  to  abuse. 
Still,  however,  in  such  a  case,  the  people,  who  were  to 
bear  the  burdens,  and  meet  the  sacrifices  and  sufferings 
of  such  a  calamity,  would  have  no  direct  voice  in  the  mat¬ 
ter.  Yet  the  taxes  and  the  loans,  which  would  be  required 
to  carry  on  the  war,  must  be  voted  by  their  Representa¬ 
tives,  or  there  would  be  an  utter  impossibility  of  urging  it 
with  success.  If  the  Senate  should  be  in  favor  of  war, 
and  the  House  of  Representatives  against  it,  an  immediate 
conflict  would  arise  between  them,  and  in  the  distraction 
of  the  public  councils,  nothing  but  disaster  or  ruin  would 
follow  the  nation.  On  the  contrary,  if  the  House  of  Rep¬ 
resentatives  were  called  upon  by  the  Constitution  to  join 
in  the  declaration  of  war,  harmony  in  the  public  coun¬ 
cils  might  fairly  be  presumed  in  carrying  on  all  its  opera¬ 
tions  ;  for  it  would  be  a  war  sustained  by  the  authority  of 
the  voice  of  the  people,  as  well  as  of  the  States.  This 
reasoning  was  decisive  in  confiding  the  power  to  Con¬ 
gress. 

§  187.  u  Letters  of  marque  and  reprisal”  are  commis¬ 
sions,  granted  to  private  persons  and  ships,  to  make  cap¬ 
tures  ;  and  are  usually  granted  in  times  of  general  war. 
The  power  to  declare  war  would,  of  itself,  carry  the  inci¬ 
dental  power  to  grant  letters  of  marque  and  reprisal,  and 
to  make  rules  concerning  captures,  in  a  general  war. 
But  such  letters  are  also  sometimes  granted  by  nations, 
having  no  intention  to  enter  into  a  general  war,  in  order 
to  redress  a  grievance  to  a  private  citizen,  which  the  offend¬ 
ing  nation  refuses  to  redress.  In  such  a  case,  a  commis¬ 
sion  is  sometimes  granted  to  the  injured  individual,  to  make 
a  reprisal  upon  the  property  of  the  subjects  of  that  nation 
to  the  extent  of  his  injury.  It  thus  creates  an  imperfect 
state  of  hostilities,  not  necessarily  including  a  general  war- 

11  XIII 


122-  CONSTITUTION  OF  THE  UNITED  STATES. 

fare.  Still,  however,  it  is  a  dangerous  experiment  ;  and 
the  more  usual,  and  wise  course  is,  to  resort  to  negotia¬ 
tions  in  such  cases,  and  to  wait  until  a  favorable  moment 
occurs  to  press  the  claim. 

§  183.  If  captures  are  to  be  made,  as  they  necessarily 
must  be,  to  give  efficiency  to  a  declaration  of  war,  it  follows, 
that  the  General  Government  ought  to  possess  the  power  to 
make  rules  and  regulations  concerning  them,  thereby  to 
restrain  personal  violence,  intemperate  cupidity,  and  de¬ 
grading  cruelty. 


CHAPTER  XX. 

Power  as  to  Army  and  Navy. 

§  189.  The  next  power  of  Congress  is,  “to  raise  and 
support  armies  ;  but  no  appropriation  of  money  to  that 
use  shall  be  for  a  longer  term  than  two  years.”  The 
power  to  raise  armies  would  seem  to  be  an  indispensable 
incident  to  the  power  to  declare  war,  if  the  latter  is  not 
to  be  a  mere  idle  sound,  or  instrument  of  mischief.  Un¬ 
der  the  Confederation,  however,  the  two  powers  were 
separated  ;  Congress  were  authorized  to  declare  war ; 
but  they  could  not  raise  troops.  They  could  only  make 
requisitions  upon  the  States  to  raise  them.  The  experi¬ 
ence  of  the  whole  country,  during  the  Revolutionary  War, 
established,  to  the  satisfaction  of  every  statesman,  the 
utter  inadequacy  and  impropriety  of  this  system  of  re¬ 
quisition.  It  was  equally  at  war  with  economy,  efficiency, 
and  safety.  It  gave  birth  to  a  competition  between  the 
States,  which  created  a  kind  of  auction  of  men.  In  order 
to  furnish  the  quotas  required  of  them,  they  outbid  each 
other,  till  bounties  grew  to  an  enormous  and  insupportable 
size.  On  this  account,  many  persons  procrastinated  their 
enlistment,  or  enlisted  only  for  short  periods.  Hence, 
there  were  but  slow  and  scanty  levies  of  men  in  the  most 
critical  emergencies  of  our  affairs  ;  short  enlistments  at 
an  unparalleled  expense  ;  and  continual  fluctuations  in  the 


POWER  AS  TO  ARMY  AND  NAVY. 


123 


troops,  ruinous  to  their  discipline,  and  subjecting  the  pub¬ 
lic  safety  frequently  to  the  perilous  crisis  of  a  disbanded 
army.  Hence  also  arose  those  oppressive  expedients  for 
raising  men,  which  were  occasionally  practised,  and  which 
nothing,  but  the  enthusiasm  of  liberty,  could  have  induced 
the  people  to  endure.  The  burden  was  also  very  une¬ 
qually  distributed.  The  States  near  the  seat  of  war,  in¬ 
fluenced  by  motives  of  self-preservation,  made  efforts  to 
furnish  their  quotas,  which  even  exceeded  their  abilities  ; 
while  those  at  a  distance  were  exceedingly  remiss  in  their 
exertions.  In  short,  the  army  was  frequently  composed 
of  three  bodies  of  men  ;  first,  raw  recruits  ;  secondly, 
persons,  who  were  just  about  completing  their  term  of 
service  ;  and  thirdly,  of  persons,  who  had  served  out  half 
their  term,  and  were  quietly  waiting  for  its  determination. 
Under  such  circumstances,  the  wonder  is  not,  that  its 
military  operations  were  tardy,  irregular,  and  often  un¬ 
successful  ;  but,  that  it  was  ever  able  to  make  headway 
at  all  against  an  enemy,  possessing  a  fine  establishment, 
well  appointed,  well  armed,  well  clothed,  and  well  paid. 
The  appointment,  too,  by  the  States,  of  all  regimental 
officers,  had  a  tendency  to  destroy  all  harmony  and  sub¬ 
ordination,  so  necessary  to  the  success  of  military  life. 
The  consequence  was  (as  is  well  known)  general  ineffi¬ 
ciency,  want  of  economy,  mischievous  delays,  and  great 
inequality  of  burdens.  This  is,  doubtless,  the  reason, 
why  the  power  is  expressly  given  to  Congress.  It  in¬ 
sures  promptitude  and  unity  of  action,  and,  at  the  same 
time,  promotes  economy  and  harmony  of  operations. 
Nor  is  it  in  war  only,  that  the  power  to  raise  armies  may 
be  usefully  applied.  It  is  important  to  suppress  domestic 
rebellions  and  insurrections,  and  to  prevent  foreign  ag¬ 
gressions  and  invasions.  A  nation,  which  is  prepared  for 
war  in  times  of  peace,  will,  thereby,  often  escape  the  ne¬ 
cessity  of  engaging  in  war.  Its  rights  will  be  respected, 
and  its  wrongs  redressed.  Imbecility  and  want  of  prep¬ 
aration  invite  aggression,  and  protract  controversy. 

§  190.  But,  inasmuch  as  the  power  to  raise  armies 
may  be  perverted  in  times  of  peace  to  improper  purposes, 
a  restriction  is  imposed  upon  the  grant  of  appropriations 


124  CONSTITUTION  OF  THE  UNITED  STATES. 

by  Congress  for  the  maintenance  of  them.  So  that,  at 
furthest,  every  two  years,  the  propriety  of  retaining  an  ex¬ 
isting  army  must  regularly  come  before  the  Representa¬ 
tives  of  the  people  in  Congress  for  consideration  ;  and  if 
no  appropriation  is  made,  the  army  is  necessarily  dis¬ 
banded.  Thus,  the  army  may,  at  any  time  within  two 
years,  be  in  effect  dissolved,  by  a  majority  of  Congress, 
without  the  consent  of  the  President,  by  a  simple  refusal 
to  grant  supplies.  In  point  of  fact,  Congress  have  hith¬ 
erto  made  the  appropriations  annual,  as  they  have  a  con¬ 
stitutional  right  to  do,  if  it  is  deemed  expedient.  The 
power,  therefore,  is  surrounded  by  all  reasonable  restric¬ 
tions,  as  to  its  exercise  ;  and  it  has  hitherto  been  used  in 
a  manner,  which  has  conferred  lasting  benefits  on  the 
country. 

§  191.  The  next  power  of  Congress  is,  u  to  provide, 
and  maintain  a  navy.”  This  power  has  the  same  general 
object,  as  that  to  raise  armies.  But,  in  its  own  nature, 
it  is  far  more  safe,  and,  for  a  maritime  nation,  quite  as  in¬ 
dispensable.  No  nation  was  ever  deprived  of  its  liberty 
by  its  navy.  The  same  cannot  be  said  of  its  army. 
And  a  commercial  nation  would  be  utterly  without  its  due 
share  of  sovereignty  upon  the  ocean,  its  means  of  self- 
protection  at  home,  and  its  power  of  efficient  action 
abroad,  without  the  possession  of  a  navy.  Yet  this 
power,  until  a  comparatively  recent  period,  found  little 
favor  with  some  of  our  statesmen  of  no  mean  celebrity. 
It  was  not  until  the  brilliant  achievements  of  our  little 
navy,  during  the  late  war,  (1812-1814,)  had  shed  a 
glory,  as  well  as  a  protection,  over  our  national  flag  in 
every  sea,  that  the  country  became  alive  to  its  vast  im¬ 
portance  and  efficiency.  At  present,  it  enjoys  an  exten¬ 
sive  public  favor,  which,  having  been  earned  by  the  most 
gallant  deeds,  can  scarcely  fail  of  permanently  engrafting 
it  into  the  solid  establishments  of  our  national  strength. 

§  192.  The  next  power  of  Congress  is,  “to  make 
rules,  for  the  government  and  regulation  of  the  land  and 
naval  forces.”  Upon  the  propriety  of  this  power,  as  an 
incident  to  the  preceding,  it  is  unnecessary  to  enlarge. 
It  is  equally  beyond  the  reach  of  cavil  and  complaint. 


POWER  OVER  MILITIA. 


125 


CHAPTER  XXI. 

Power  over  Militia . 

193.  The  next  power  of  Congress  is,  u  to  provide 
for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions.” 
This  is  a  natural  incident  to  the  duty,  devolved  on  the 
General  Government,  of  superintending  the  common  de¬ 
fence,  and  providing  for  the  general  welfare  in  matters 
confided  to  it  by  the  Constitution.  There  is  but  one  of 
two  alternatives,  which  can  be  resorted  to  in  cases  of  in¬ 
surrections,  invasions,  or  violent  oppositions  to  the  exe¬ 
cution  of  the  laws  ;  either  to  employ  regular  troops,  or 
to  employ  the  militia  In  ordinary  cases  of  riots  and 
public  disturbances,  the  magistracy  of  the  country,  with 
the  assistance  of  the  civil  officers,  and  private  individuals, 
may  be  sufficient  to  restore  the  public  peace.  But  when 
force  is  contemplated  by  a  discontented  and  lawless  fac¬ 
tion,  it  is  manifest,  that  it  must  be  met,  and  overthrown 
by  force.  Among  a  free  people,  there  is  a  strong  objec¬ 
tion  to  the  keeping  up  of  a  large  standing  army.  But  this 
will  be  indispensable,  unless  the  power  is  delegated  to 
command  the  services  of  the  militia  in  such  exigencies. 
The  latter  is,  therefore,  conferred  on  Congress,  because 
it  is  the  most  safe,  and  the  least  obnoxious  to  popular 
jealousy.  The  employment  of  the  militia  is  economical, 
and  will  generally  be  found  to  be  efficient,  in  suppressing 
sudden  and  transitory  insurrections,  and  invasions,  and 
resistances  of  the  laws. 

§  194.  It  is  observable,  that  the  power  given  to  Con¬ 
gress  over  the  militia  is  not  limited  as  to  the  time  of  ser¬ 
vice,  or  as  to  the  place  of  operation.  And  it  is  obvious, 
that  to  be  effective,  the  power  could  not  safely  be  limited 
in  either  respect ;  for  it  is  impossible  to  foresee  either  the 
nature,  or  extent,  or  place,  or  duration,  of  the  exigency,  for 
which  the  militia  might  properly  be  called  forth.  It  must 
11* 


126  CONSTITUTION  OF  THE  UNITED  STATES. 

be  left,  therefore,  to  the  sound  discretion  of  Congress, 
acting  with  a  wise  regard  to  the  public  interests  and  the 
convenience  of  military  operations.  If  Congress  had  no 
authority  to  march  the  militia  beyond  the  territorial  bound¬ 
aries  of  a  particular  State,  either  to  execute  the  laws,  or 
to  suppress  insurrections,  or  to  repel  invasions,  the  power 
over  the  militia  might  be  perfectly  nugatory  for  all  the 
purposes  of  common  safety,  or  common  defence.  Sup¬ 
pose  there  should  be  an  invasion  of  Rhode  Island  by  a 
public  enemy,  if  the  militia  of  the  neighboring  States 
could  not  be  ordered  into  that  State  for  military  duty,  it  is 
obvious,  that  the  militia  would  be  utterly  worthless  for 
the  general  protection  of  the  Union.  Suppose  a  battle 
to  be  fought  on  the  confines  of  two  States,  and  the  militia 
to  stop  at  the  boundary,  and  thus  to  lose  all  the  advanta¬ 
ges  of  mutual  cooperation,  and  even  of  a  victory  almost 
achieved  ?  In  times  of  insurrection  or  invasion,  it  cannot 
admit  of  a  reasonable  doubt,  that  it  would  be  both  natural 
and  proper,  that  the  militia  of  the  neighboring  States  should 
be  marched  into  the  suffering  State  to  repel  the  invaders, 
or  to  suppress  the  insurgents.  But  it  would  rarely  occur, 
if  ever,  that  the  militia  of  any  one  State  would  be  required 
to  march  to  a  great  distance  from  their  homes,  or  for  a  long 
period  of  service,  since  it  would  be  at  once  the  most  in¬ 
convenient,  as  well  as  the  most  expensive  force,  which  could 
be  employed  upon  distant  expeditions.  And  yet  an  occa¬ 
sion  might  occur,  when  even  such  a  service  might  be 
indispensable  to  the  public  safety  ;  as  it  was  in  the  late 
war  with  Great  Britain,  (1814,)  when  the  militia  of  Ten¬ 
nessee  and  Kentucky  were  required  to  go  to  New  Or¬ 
leans  ;  and  there  saved  the  country  from  the  dreadful  ca¬ 
lamity  of  having  the  mouth  of  the  Mississippi  in  the  hands 
of  the  enemy. 

§  195.  The  next  power  of  Congress  is,  u  to  provide 
for  organizing,  arming,  and  disciplining  the  militia,  and 
for  governing  such  part  of  them,  as  may  be  employed  in 
the  service  of  the  United  States  ;  reserving  to  the  States, 
respectively,  the  appointment  of  the  officers,  and  the  au¬ 
thority  of  training  the  militia,  according  to  the  discipline 
prescribed  by  Congress.1’  And  here,  again,  we  have 


POWER  OVER  MILITIA. 


127 


another  instance  of  the  distribution  of  powers,  between 
the  National  and  State  Governments,  over  the  same  sub¬ 
ject  matter.  Unless  there  is  uniformity  in  the  organiza¬ 
tion,  arming,  and  disciplining  of  the  militia,  there  can  be 
little  chance  of  any  energy,  or  harmony  of  action,  be¬ 
tween  the  corps  of  militia  of  different  States,  when  called 
into  the  public  service.  Uniformity  can  alone  be  pre¬ 
scribed  by  the  General  Government;  and  the  power  is 
accordingly  given  to  it.  On  the  other  hand,  as  a  com¬ 
plete  control  of  the  militia  by  the  General  Government 
would  deprive  the  States  of  their  natural  means  of  military 
defence,  even  upon  the  most  urgent  occasions,  and  would 
leave  them  absolutely  dependent  upon  the  General  Gov¬ 
ernment,  the  power  of  the  latter  is  limited  to  a  few  cases  ; 
and  the  former  retain  the  appointment  of  all  the  officers, 
and  also  the  authority  to  train  the  militia,  according  to  the 
discipline  prescribed  by  Congress.  With  these  limita¬ 
tions,  the  authority  of  Congress  would  seem  to  be  above 
all  reasonable  objections. 

§  196.  Several  questions,  of  great  practical  importance, 
have  arisen  under  these  clauses  of  the  Constitution  re¬ 
specting  the  power  of  the  National  Government  over  the 
militia,  which  deserve  mention  in  this  place.  Congress 
are  authorized  “  to  provide  for  calling  forth  the  militia,”  in 
the  particular  exigencies  above  stated.  And  accordingly, 
by  an  act  passed  in  1795,  under  President  Washington’s 
administration,  authority  was  given  to  the  President  to 
call  forth  the  militia  in  case  any  of  those  exigencies  oc¬ 
curred.  The  delegation  of  this  power  to  the  President 
would  seem  indispensable,  since  the  exigency  might  occur 
in  the  recess  of  Congress  ;  and  by  the  Constitution,  the 
President  is  not  only  Commander-in-Chief  of  the  army 
and  navy,  and  of  the  militia,  when  called  into  service,  but 
he  is  also  (as  we  shall  see)  bound  to  see  the  laws  duly 
executed.  But  the  question  has  arisen,  whether  the 
President  has  the  sole  and  exclusive  authority  to  judge 
and  decide,  whether  the  exigency  has  arisen,  or  not  ;  or, 
in  other  words,  whether  any  subordinate  officer  of  the 
militia,  or  any  State  magistrate,  has  a  right  to  judge  and 
decide  for  himself,  whether  the  exigency  has  arisen,  and 


128  CONSTITUTION  OF  THE  UNITED  STATES. 

whether,  when  called  upon,  he  is  bound  to  obey  the  re¬ 
quisitions  of  the  President  or  not.  This  question  was 
formerly  a  matter  of  heated  controversy,  and  at  last  came 
before  the  Supreme  Court  of  the  United  States  for  de¬ 
cision,  where  it  was  finally  settled,  upon  full  deliberation, 
that,  from  the  necessity  of  the  case,  the  President  is  the 
exclusive  judge  of  the  exigency  ;  and  that  his  decision  was 
conclusive.  The  reasoning,  which  led  to  this  conclusion, 
cannot  be  repeated  in  this  work  ;  but  it  deserves  the  at¬ 
tentive  consideration  of  every  statesman. 

§  197.  Another  question,  of  great  practical  importance, 
is,  Who,  in  the  personal  absence  of  the  President,  is  to 
command  the  militia  called  forth  in  the  service  of  the 
National  Government  ?  Are  the  commanding  officers  of 
the  militia  of  each  State,  so  in  service,  to  command  their 
separate  detachments  during  his  absence,  or  has  the 
President  a  right  to  delegate  his  authority  to  any  su¬ 
perior  military  officer  of  the  United  States,  or  of  the 
militia,  to  act  as  commander  of  the  whole  force  during  his 
absence  ?  This  question  was  also  formerly  a  matter  of 
great  controversy  ;  and  perhaps  is  not  now  definitively 
settled.  Practically,  however,  the  National  Government 
has  constantly  insisted  upon  the  right  of  the  President,  in 
such  cases,  to  appoint  a  person  to  act  as  his  delegate  in 
the  command  ;  and  most  of  the  States  of  the  Union  have 
acquiesced  in  this  decision,  as  indispensable  to  any  effective 
military  operations. 


CHAPTER  XXII. 

Seat  of  Government ,  and  other  Ceded  Places. 

§  198.  The  next  power  of  Congress  is,  u  to  exercise 
exclusive  legislation,  in  all  cases  whatsoever,  over  such 
District,  not  exceeding  ten  miles  square,  as  may,  by 
cession  of  particular  States,  and  the  acceptance  of  Con¬ 
gress,  become  the  Seat  of  the  Government  of  the 
United  States  ;  and  to  exercise  like  authority  over  all 
places  purchased  by  the  consent  of  the  Legislature  of  the 


SEAT  OF  GOVERNMENT. 


129 


State,  in  which  the  same  shall  be,  for  the  erection  of  forts, 
magazines,  arsenals,  dockyards,  and  other  needful  build¬ 
ings.  ” 

§  199.  A  moment’s  consideration  will  establish  the 
importance  and  necessity  of  this  power.  Without  it,  the 
National  Government  would  have  no  adequate  means  to 
enforce  its  authority  in  the  place,  in  which  its  public  func¬ 
tionaries  should  be  convened.  They  might  be  insulted, 
and  their  proceedings  might  be  interrupted  with  impunity. 
And  if  the  State  should  array  itself  in  hostility  to  the  pro¬ 
ceedings  of  the  National  Government,  the  latter  might  be 
driven  to  seek  another  asylum,  or  be  compelled  to  an  hu¬ 
miliating  submission  to  the  State  authorities.  It  never 
could  be  safe,  to  leave,  in  the  possession  of  any  one  State, 
the  exclusive  power  to  decide,  whether  the  functionaries 
of  the  National  Government  should  have  the  moral  or 
physical  power  to  perform  their  duties.  Nor  let  it  be 
thought,  that  the  evil  is  wholly  imaginary.  It  actually 
occurred  to  the  Continental  Congress,  at  the  very  close 
of  the  Revolution,  who  were  compelled  to  quit  Philadel¬ 
phia,  and  adjourn  to  Princeton,  in  order  to  escape  from 
the  violence  of  some  insolent  mutineers  of  the  Continental 
army. 

§  200.  It  is  under  this  clause,  that  the  cession  of  the 
present  District  of  Columbia  was  made,  by  the  States  of 
Maryland  and  Virginia,  to  the  National  Government;  and 
the  present  seat  of  the  National  Government  was  estab¬ 
lished  at  the  city  of  Washington,  in  1800.  That  con¬ 
venient  spot  was  selected  by  the  exalted  patriot,  whose 
name  it  bears,  for  this  very  purpose.  And  who,  that 
loves  his  country,  does  not  desire,  that  it  may  for  ever 
remain  a  monument  of  his  wisdom,  and  the  eternal  capital 
of  the  republic  ? 

§201.  The  other  clause,  as  to  cessions  for  forts, 
magazines,  arsenals,  dockyards,  and  other  needful  build¬ 
ings,  is  dictated  by  a  like  policy.  The  public  money 
expended  on  such  places,  the  public  property  deposited 
there,  the  military,  and  other  duties  to  be  executed  there, 
all  require,  that  the  sovereignty  of  the  United  States 
should  have  exclusive  jurisdiction  and  control  over  them. 


130  CONSTITUTION  OF  THE  UNITED  STATES. 

It  would  be  wholly  improper,  that  such  places,  on  which 
the  security  of  the  Union  may  materially  depend,  should 
be  subjected  to  the  authority  of  any  single  member  of  it. 
In  order  to  guard  against  any  possible  abuse,  the  consent 
of  the  State  Legislature  is  necessary  to  divest  its  own 
territorial  jurisdiction  ;  and,  of  course,  that  consent  will 
never  be  given,  unless  the  public  good  will  be  manifestly 
promoted  by  the  cession. 

§  202.  A  great  variety  of  cessions  have  been  made 
by  the  States  under  this  power.  And  generally  there 
has  been  a  reservation  of  the  right  to  serve  all  State  pro¬ 
cess,  civil  and  criminal,  upon  persons  found  therein. 
This  reservation  has  not  been  thought  at  all  inconsistent 
with  the  provision  of  the  Constitution  ;  for  the  State  pro¬ 
cess,  in  this  respect,  becomes  the  process  of  the  United 
States,  and  the  general  power  of  exclusive  legislation 
remains  with  Congress.  Thus,  these  places  are  not 
capable  of  being  made  a  sanctuary  for  fugitives,  to  exempt 
them  from  acts  done  within,  and  cognizable  by,  the  States, 
to  which  the  territory  belonged  ;  and,  at  the  same  time, 
Congress  is  enabled  to  accomplish  the  great  objects  of 
the  power. 

§  203.  The  power  of  Congress  to  exercise  exclusive 
jurisdiction  over  these  ceded  places  is  conferred  on  that 
body,  as  the  Legislature  of  the  Union  ;  and  cannot  be  ex¬ 
ercised  in  any  other  character.  A  law  passed  in  pursu¬ 
ance  of  it  is  the  supreme  law  of  the  land,  and  binding  on 
all  the  States,  and  cannot  be  defeated  by  them.  The 
power  to  pass  such  a  law  carries  with  it  all  the  incidental 
powers  to  give  it  complete  and  effectual  execution  ;  and 
such  a  law  may  be  extended  in  its  operation  incidentally 
throughout  the  United  States,  if  Congress  think  it  neces¬ 
sary  so  to  do.  But  if  intended  to  have  efficiency  beyond 
the  District,  language  must  be  used  in  the  act  expressive 
of  such  an  intention  ;  otherwise  it  will  be  deemed  to  be 
purely  local. 

§  204.  It  follows  from  this  review  of  the  clause,  that 
the  States  cannot  take  cognizance  of  any  acts  done  in  the 
ceded  places  after  the  cession  ;  and,  on  the  other  hand, 
the  inhabitants  of  those  places  cease  to  be  inhabitants  of 


GENERAL  POWER  TO  MAKE  LAWS. 


131 


the  State,  and  can  no  longer  exercise  any  civil  or  politi¬ 
cal  rights  under  the  laws  of  the  State.  But  if  there  has 
been  no  cession  by  the  State,  of  a  particular  place,  although 
it  has  been  constantly  occupied  and  used,  under  purchase, 
or  otherwise,  by  the  United  States,  for  a  fort,  arsenal,  or 
other  constitutional  purpose,  the  State  jurisdiction  still 
remains  complete  and  perfect. 

§  205.  Upon  a  recent  occasion,  the  nature  and  effect 
of  the  exclusive  power  of  legislation,  thus  given  by  the 
Constitution  in  these  ceded  places,  came  under  the  con¬ 
sideration  of  the  Supreme  Court,  and  was  much  discussed. 
It  was  argued,  that  all  such  legislation  by  Congress  was 
purely  local,  like  that  exercised  by  a  territorial  Legisla¬ 
ture  ;  and  was  not  to  be  deemed  legislation  by  Congress 
in  the  character  of  the  Legislature  of  the  Union.  The 
object  of  the  argument  was  to  establish,  that  a  law,  made 
in  or  for  such  ceded  places,  had  no  extra-territorial  force 
or  obligation,  it  not  being  a  law  of  the  United  States. 
The  reasoning  of  the  Court  affirming,  that  such  an  act  was 
a  law  of  the  United  States,  and  that  Congress,  in  passing 
it,  acted  as  the  Legislature  of  the  Union,  can  be  best 
conveyed  in  their  own  language,  and  would  be  impaired 
by  an  abridgement,  and  therefore  is  omitted  as  incompati¬ 
ble  with  the  design  of  the  present  work. 


CHAPTER  XXIII. 

General  Power  to  make  Necessary  and  Proper  Laws. 

§  206.  The  next  power  of  Congress  is,  uto  make  all 
laws,  which  shall  be  necessary  and  proper  for  carrying 
into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  government  of  the 
United  States,  or  in  any  department,  or  officer  thereof.” 

§  207.  This  clause  is  merely  declaratory  of  a  truth, 
which  would  have  resulted  by  necessary  implication  from 
the  act  of  establishing  a  National  Government,  and  invest¬ 
ing  it  with  certain  powers.  If  a  power  to  do  a  thing  is 


132  CONSTITUTION  OF  THE  UNITED  STATES. 

given,  it  includes  the  use  of  the  means,  necessary  and 
proper,  to  execute  it.  If  it  includes  any  such  means,  it 
includes  all  such  means  ;  for  none  can,  more  correctly 
than  others,  be  said  exclusively  to  appertain  to  the  pow¬ 
er  ;  and  the  choice  must  depend  upon  circumstances,  to 
be  judged  of  by  Congress.  What  is  a  power,  but  the 
ability  or  faculty  of  doing  a  thing  ?  What  is  the  ability 
to  do  a  thing,  but  the  power  of  employing  the  means 
necessary  to  its  execution  ?  What  is  a  legislative  pow¬ 
er,  but  a  power  of  making  laws  ?  What  are  the  means 
to  execute  a  legislative  power,  but  laws  ?  What  is  the 
power,  for  instance,  of  laying  and  collecting  taxes,  but  a 
legislative  power,  or  a  power  to  make  laws  to  lay  and 
collect  taxes  ?  What  are  the  proper  means  of  executing 
such  a  power,  but  necessary  and  proper  laws  ?  In  truth, 
the  constitutional  operation  of  the  government  would  be 
precisely  the  same,  if  the  clause  were  obliterated,  as  if  it 
were  repeated  in  every  article.  .  It  would  otherwise  re¬ 
sult,  that  the  power  could  never  be  exercised  ;  that  is, 
the  end  would  be  required,  and  yet  no  means  allowed. 
This  would  be  a  perfect  absurdity.  It  would  be  to  create 
powers,  and  compel  them  to  remain  for  ever  in  a  torpid, 
dormant,  and  paralytic  state.  It  cannot,  therefore,  be 
denied,  that  the  powers,  given  by  the  Constitution,  imply 
the  ordinary  means  of  execution  ;  for,  without  the  sub¬ 
stance  of  the  power,  the  Constitution  would  be  a  dead  let¬ 
ter.  If  it  should  be  asked,  why,  then,  was  the  clause 
inserted  in  the  Constitution  ;  the  answer  is,  that  it  is  pe¬ 
culiarly  useful,  in  order  to  avoid  any  doubt,  which  inge¬ 
nuity  or  jealousy  might  raise  upon  the  subject.  There 
was  also  a  clause  in  the  Articles  of  Confederation,  which 
restrained  the  authority  of  Congress  to  powers  expressly 
granted  ;  and,  therefore,  it  was  highly  expedient  to  make 
an  explicit  declaration,  that  that  rule  of  interpretation, 
which  had  been  the  source  of  endless  embarrassments 
under  the  Confederation,  should  no  longer  prevail.  The 
Continental  Congress  had  been  compelled,  in  numerous 
instances,  to  disregard  that  limitation,  in  order  to  escape 
from  the  most  absurd  and  distressing  consequences.  They 
had  been  driven  to  the  dangerous  experiment  of  violating 
the  Confederation,  in  order  to  preserve  it. 


GENERAL  POWER  TO  MAKE  LAWS. 


133 


§  208.  The  plain  import  of  the  present  clause  is,  that 
Congress  shall  have  all  the  incidental  and  instrumental 
powers,  necessary  and  proper  to  carry  into  execution  the 
other  express  powers  ;  not  merely  such  as  are  indispensa¬ 
bly  necessary  in  the  strictest  sense,  (for  then  the  word 
“proper”  ought  to  have  been  omitted,)  but  such  also  as 
are  appropriate  to  the  end  required.  Indeed,  it  would 
otherwise  be  difficult  to  give  any  rational  interpretation 
to  the  clause  ;  for  it  can  scarcely  be  affirmed,  that  one 
means  only  exists  to  carry  into  effect  any  of  the  given 
powers  ;  and  if  more  than  one  should  exist,  then  neither 
could  be  adopted,  because  neither  could  be  shown  to  be 
indispensably  necessary.  The  clause,  in  its  just  sense, 
then,  does  not  enlarge  any  other  power,  specifically  grant¬ 
ed  ;  nor  is  it  the  grant  of  any  new  power.  It  is  merely 
a  declaration,  to  remove  all  uncertainty,  that  every  power 
is  to  be  so  interpreted,  as  to  include  suitable  means  to 
carry  it  into  execution.  The  very  controversies,  which 
have  since  arisen,  and  the  efforts,  which  have  since  been 
made,  to  narrow  down  the  just  interpretation  of  the  clause, 
demonstrate  its  wisdom  and  propriety.  The  practice  of 
the  government,  too,  has  been  in  conformity  to  this  view 
of  the  matter.  There  is  scarcely  a  law  of  Congress,  which 
does  not  include  the  exercise  of  implied  powers  and  means. 
This  might  be  illustrated  by  abundant  examples.  Under 
the  power  “to  establish  post  offices  and  post  roads,”  Con¬ 
gress  have  proceeded  to  make  contracts  for  the  carriage 
of  the  mail,  have  punished  offences  against  the  establish¬ 
ment,  and  have  made  an  infinite  variety  of  subordinate 
provisions,  not  one  of  which  is  found  expressly  authorized 
in  the  Constitution.  A  still  more  striking  case  of  implied 
power  is,  that  the  United  States,  as  a  government,  have 
no  express  authority  given  to  make  any  contracts  ;  and  yet 
it  is  plain,  that  the  government  could  not  go  on  for  an 
hour  without  this  implied  power. 

§  209.  There  are  many  other  cases,  in  which  Con¬ 
gress  have  acted  upon  implied  powers,  some  of  which 
have  given  rise  to  much  political  discussion,  and  contro¬ 
versy  ;  but  it  is  not  within  the  design  of  this  work  to  ex¬ 
amine  those  cases,  or  to  express  any  opinion  respecting 

12  xm. 


134  CONSTITUTION  OF  THE  UNITED  STATES. 

them.  It  is  proper,  however,  that  the  reader  should  be 
apprized,  that  among  them,  are  the  questions  respecting  the 
power  of  Congress  to  establish  a  national  bank  ;  to  make 
national  roads,  canals,  and  other  internal  national  improve¬ 
ments  ;  to  purchase  cessions  of  foreign  territory,  (such, 
for  example,  as  Louisiana  and  Florida  ;)  to  lay  embar¬ 
goes,  without  any  fixed  limitation  of  the  time  of  their  du¬ 
ration  ;  and  to  prohibit  intercourse  or  commerce  with  a  for¬ 
eign  nation  for  an  unlimited  period. 

§  210.  And  here  terminates  the  eighth  section  of  the 
Constitution  professing  to  enumerate  the  powers  of  Con¬ 
gress.  But  there  are  other  clauses,  delegating  express 
powers,  which,  though  detached  from  their  natural  con¬ 
nection  in  that  instrument,  should  be  here  brought  under 
review,  in  order  to  complete  the  enumeration. 


CHAPTER  XXIV. 

Punishment  of  Treason. — State  Records. 

§  211.  The  third  clause  of  the  third  article  contains 
a  constitutional  definition  of  the  crime  of  treason,  (which 
will  be  reserved  for  a  separate  examination,)  and  then  pro¬ 
ceeds,  in  the  same  section,  to  provide, — u  The  Congress 
shall  have  power  to  declare  the  punishment  of  treason. 
But  no  attainder  of  treason  shall  work  corruption  of  blood, 
or  forfeiture,  except  during  the  life  of  the  person  attaint¬ 
ed.”  The  punishment  of  treason  by  the  common  law,  par¬ 
takes,  in  a  high  degree,  of  those  savage  and  malignant 
refinements  in  cruelty,  which  in  former  ages  were  the  ordi¬ 
nary  penalties  attached  to  state  offences.  The  offender 
is  to  be  drawn  to  the  gallows  on  a  hurdle ;  hanged  by  the 
neck,  and  cut  down  alive  ;  his  entrails  taken  out,  and  burn¬ 
ed,  while  he  is  yet  alive  ;  his  head  cut  off' ;  and  his  body 
quartered.  Congress  are  intrusted  with  the  power  to  fix 
the  punishment,  and  have,  with  great  wisdom  and  human¬ 
ity,  abolished  these  horrible  accompaniments,  and  confin¬ 
ed  the  punishment  simply  to  death  by  hanging.  The 


PUNISHMENT  OF  TREASON. 


135 


power  to  punish  treason  is  exclusive  in  Congress  ;  and 
the  trial  for  the  offence,  as  well  as  the  award  of  the  pun¬ 
ishment,  belongs,  also,  exclusively  to  the  National  tribu¬ 
nals,  and  cannot  be  exercised  by  any  State  tribunals. 

§  212.  The  other  clause  may  require  some  explana¬ 
tion,  to  those,  who  are  not  bred  to  the  profession  of  the 
law.  By  the  common  law,  one  of  the  regular  incidents 
to  an  attainder  for  treason,  (that  is,  to  a  conviction  and 
judgement  in  court  against  the  offender,)  is,  that  he  forfeits 
all  his  estate,  real  and  personal.  His  blood  is  also  cor¬ 
rupted,  that  is,  it  loses  all  inheritable  qualities,  so  that  he 
can  neither  inherit  any  real  estate  himself,  from  any  ances¬ 
tor  or  relation  bv  blood,  nor  can  his  heirs  inherit  anv  real 
estate  from  him,  or  through  him,  from  any  ancestor  or  re¬ 
lation  by  blood.  So  that,  if  the  father  should  commit  trea¬ 
son,  and  be  attainted  of  it  in  the  life  time  of  the  grand¬ 
father,  and  the  latter  should  then  die,  the  grandson  could 
not  inherit  any  real  estate  from  the  grandfather,  although 
both  were  perfectly  innocent  of  the  offence  ;  for  the 
father  could  communicate  no  inheritable  blood  to  the 
grandson.  Thus,  innocent  persons  are  made  the  victims 
of  the  misdeeds  of  their  ancestors  ;  and  are  punished, 
even  to  the  remotest  generations,  by  incapacities  derived 
through  them.  The  Constitution  has  abolished  this  cor¬ 
ruption  of  blood,  and  general  forfeiture  ;  and  confined  the 
punishment  exclusively  to  the  offenders  ;  thus  adopting  a 
rule,  founded  in  sound  policy,  and  as  humane,  as  it  is  just. 

§  213.  The  first  section  of  the  fourth  article  declares, 
u  Full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every 
other  State.  And  the  Congress  may,  by  general  laws, 
prescribe  the  manner,  in  which  such  acts,  records,  and 
proceedings  shall  be  proved,  and  the  effect  thereof.” 

§  214.  It  is  well  known,  that  the  acts,  records,  and 
judicial  proceedings  of  foreign  nations  are  not  judicially 
taken  notice  of  by  our  courts  ;  that  is,  their  genuineness, 
validity,  and  authority  are  not  admitted  as  of  course  by 
our  courts,  as  is  the  ease  with  the  acts,  records,  and 
judicial  proceedings  of  the  Legislature  and  judicial  tri¬ 
bunals  of  the  State  ;  but  they  must  he  proved,  like  other 


136  CONSTITUTION  OF  THE  UNITED  STATES. 


facts,  whenever  they  are  brought  into  controversy  in  any 
suit.  The  nature  and  modes  of  such  proof  are  different 
in  different  countries  ;  and  being  wholly  governed  by  the 
municipal  law  of  each  particular  nation,  must  present 
many  embarrassing  questions.  Independent  of  the  proof , 
another  not  less  serious  difficulty  is,  as  to  the  effect  to  be 
given  to  such  acts,  records,  and  proceedings,  after  they 
are  duly  authenticated.  For  example,  what  effect  is  to 
be  given  to  the  judgement  of  a  court  in  one  country,  when 
it  is  sought  to  be  enforced  in  another  country  ?  Is  it  to  be 
held  conclusive  upon  the  parties,  without  further  inquiry  ? 
Or,  is  it  to  be  treated  like  common  suits,  and  its  justice 
and  equity  to  be  open  to  new  proofs  and  new  litigation  ? 
These  are  very  serious  questions,  upon  which  different  na¬ 
tions  hold  very  different  doctrines.  Even  in  the  American 
Colonies,  before  the  Revolution,  no  uniform  rules  were 
adopted,  in  regard  to  judgements  in  other  colonies.  In 
some,  they  were  held  conclusive  ;  in  others,  not.  Some 
foreign  nations  hold  the  judgements  of  foreign  courts  be¬ 
tween  the  parties,  as  of  no  validity  or  force  out  of  the  ter¬ 
ritory,  where  the  judgements  are  pronounced  ;  others  hold 
such  judgements  to  be  only  prima  facie  or  presumptively 
valid  and  just,  but  open  to  be  controverted  and  over¬ 
thrown  by  any  new  proofs  ;  and  others,  again,  hold  such 
judgements,  either  absolutely,  or  under  certain  limitations 
and  restrictions,  to  be  binding  and  conclusive  between  the 
parties  and  their  heirs  and  other  representatives.  Now, 
domestic  judgements,  that  is,  judgements  rendered  in  the 
same  State,  are  uniformly  held,  in  all  the  tribunals  of  that 
State,  to  be  conclusive  between  the  parties  and  their  heirs 
and  representatives,  so  that  they  cannot  be  controverted, 
or  their  validity  impeached,  or  new  proofs  offered  to  over¬ 
throw  them  in  the  ordinary  administration  of  justice. 

§  215.  We  may  readily  perceive,  upon  a  slight  exam¬ 
ination,  how  inconvenient  it  would  be,  to  hold  all  the 
judgements  rendered  in  one  State  to  be  controverted 
anew  in  any  other  State.  Suppose  a  judgement  in  one 
State,  after  a  trial,  and  verdict  by  a  jury,  upon  a  contract, 
or  for  a  trespass,  in  the  place  where  all  the  witnesses 
lived  ;  and,  afterwards,  the  defendant  should  remove  into 


ADMISSION  OF  NEW  STATES. 


137 


another  State,  and  some  of  the  material  witnesses  should 
die,  or  remove,  so  that  their  testimony  could  not  be  had  ; 
if  the  defendant  were  then  called  upon  to  satisfy  the  judge¬ 
ment  in  a  new  suit,  and  he  might  controvert  anew  all  the 
facts,  there  could  be  no  certainty  of  any  just  redress  to  the 
plaintiff.  The  Constitution,  therefore,  has  wisely  sup¬ 
pressed  this  source  of  heart-burning  and  mischief  between 
the  inhabitants  of  different  States,  by  declaring,  that  full 
faith  and  credit  shall  be  given  to  the  acts,  records,  and 
judicial  proceedings  of  every  other  State  ;  and  by  author¬ 
izing  Congress'  to  prescribe  the  mode  of  authentication, 
and  the  effect  of  such  authentication,  when  duly  made. 
Congress  have  accordingly  declared  the  mode,  in  which 
the  records  and  judgements  of  the  respective  States  shall 
be  authenticated,  and  have  further  declared,  that,  when  so 
authenticated,  they  shall  have  the  same  force  and  credit, 
and,  of  course,  the  same  effect,  in  every  other  State,  that 
they  have  in  the  State,  where  the  records  and  judgements 
were  originally  made  and  rendered. 


CHAPTER  XXV. 

Admission  of  New  States. —  Government  of  Territories. 

§  216.  The  first  clause  of  the  fourth  article  declares, 
u  New  States  may  be  admitted  by  the  Congress  into  this 
Union.  But  no  new  State  shall,  be  formed  or  erected 
within  the  jurisdiction  of  any  other  State  ;  nor  any  State 
be  formed  by  the  junction  of  two  or  more  States,  or  parts 
of  States,  without  the  consent  of  the  Legislatures  of  the 
States  concerned,  as  well  as  of  the  Congress.”  It  was 
early  foreseen,  from  the  extent  of  the  territory  of  some 
States,  that  a  division  thereof  into  several  States  might  be¬ 
come  important  and  convenient  to  the  inhabitants  thereof, 
as  well  as  add  to  the  security  of  the  Union.  And  it  was 
also  obvious,  that  new  States  would  spring  up  in  the  then 
vacant  western  territory,  which  had  been  ceded  to  the 
Union,  and  that  such  new  States  could  not  long  be  re- 

12* 


138  CONSTITUTION  OF  THE  UNITED  STATES. 

tained  in  a  state  of  dependence  upon  the  National  Gov¬ 
ernment.  It  was  indispensable,  therefore,  to  make  some 
suitable  provisions  for  both  these  emergencies.  On  the 
one  hand,  the  integrity  of  any  of  the  States  ought  not  to 
be  severed  without  their  own  consent ;  for  their  sove¬ 
reignty  would,  otherwise,  be  at  the  mere  will  of  Congress. 
On  the  other  hand,  it  was  equally  clear,  that  no  State 
ought  to  be  admitted  into  the  Onion  without  the  consent 
of  Congress  ;  for,  otherwise,  the  balance,  equality,  and 
harmony  of  the  existing  States  might  be  destroyed.  Both 
of  these  objects  are,  therefore,  united  in  the  present  clause. 
To  admit  a  new  State  into  the  Union,  the  consent  of  Con¬ 
gress  is  necessary  ;  to  form  a  new  State  within  the  boun¬ 
daries  of  an  old  one,  the  consent  of  the  latter  is  also  ne¬ 
cessary.  Under  this  clause,  besides  Vermont,  three  new 
States  formed  within  the  boundaries  of  the  old  States, 
viz.,  Kentucky,  Tennessee,  and  Maine  ;  and  nine  others, 
viz.,  Ohio,  Indiana,  Illinois,  Mississippi,  Alabama,  Louis¬ 
iana,  Missouri,  Arkansas,  and  Michigan,  formed  within 
the  territories  ceded  to  the  United  States,  have  been  al¬ 
ready  admitted  into  the  Union.  Thus  far,  indeed,  the 
power  has  been  most  propitious  to  the  general  welfare  of 
the  Union,  and  has  realized  the  patriotic  anticipation,  that 
the  parents  would  exult  in  the  glory  and  prosperity  of 
their  children. 

§  217.  The  second  clause  of  the  same  section  is, 
c‘  The  Congress  shall  have  power  to  dispose  of,  and 
make  all  needful  rules  and  regulations  respecting  the  ter¬ 
ritory,  or  other  property,  belonging  to  the  United  States. 
And  nothing  in  this  Constitution  shall  be  so  construed, 
as  to  prejudice  any  claims  of  the  United  States,  or  of  any 
particular  State.”  As  the  General  Government  possess¬ 
es  the  right  to  acquire  territory  by  cession  and  conquest,  it 
would  seem  to  follow,  as  a  natural  incident,  that  it  should 
possess  the  power  to  govern  and  protect,  what  it  had  ac¬ 
quired.  At  the  time  of  the  adoption  of  the  Constitution, 
it  had  acquired  the  vast  region  included  in  the  Northwest¬ 
ern  Territory ;  and  its  acquisitions  have  since  been  great¬ 
ly  enlarged  by  the  purchase  of  Louisiana  and  Florida. 
The  two  latter  Territories,  (Louisiana  and  Florida,)  sub- 


ADMISSION  OF  NEW  STATES. 


139 


ject  to  the  treaty  stipulations,  under  which  they  were  ac¬ 
quired,  are  of  course  under  the  general  regulation  of 
Congress,  so  far  as  the  power  has  not  been  or  may  not  be 
parted  with  by  erecting  them  into  States.  The  Northwest¬ 
ern  Territory  has  been  peopled  under  the  admirable  Ordi¬ 
nance  of  the  Continental  Congress  of  the  13th  of  July, 
3  787,  which  we  owe  to  the  wise  forecast  and  political  wis¬ 
dom  of  a  man,  whom  New  England  can  never  fail  to  rev¬ 
erence.* 

§  218.  The  main  provisions  of  this  Ordinance,  which 
constitute  the  basis  of  the  Constitutions  and  Govern¬ 
ments  of  all  the  States  and  Territories  organized  within 
the  Northwestern  Territory,  deserve  here  to  be  stated,  as 
the  ordinance  is  equally  remarkable  for  the  beauty  and 
exactness  of  its  text,  and  for  its  masterly  display  of  the 
fundamental  principles  of  civil  and  religious  and  politi¬ 
cal  liberty.  It  begins,  by  providing  a  scheme  for  the 
descent  and  distribution  of  estates  equally  among  all  the 
children,  and  their  representatives,  or  other  relatives  of 
the  deceased  in  equal  degree,  making  no  distinction  be¬ 
tween  the  whole  and  the  half  blood  ;  and  for  the  mode  of 
disposing  of  real  estate  by  will,  and  by  conveyances.  It 
then  proceeds  to  provide  for  the  organization  of  the  ter¬ 
ritorial  governments,  according  to  their  progress  in  pop¬ 
ulation,  confiding  the  whole  power  to  a  Governor  and 
Judges,  in  the  first  instance,  subject  to  the  control  of  Con¬ 
gress.  As  soon  as  the  Territory  contains  five  thousand 
inhabitants,  it  provides  for  the  establishment  of  a  general 
Legislature,  to  consist  of  three  branches,  a  Governor,  a 
Legislative  Council,  and  a  House  of  Representatives  ; 
with  a  power  to  the  Legislature  to  appoint  a  delegate  to 
Congress.  It  then  proceeds  to  state  certain  fundamental 
articles  of  compact  between  the  original  States,  and  the 
people  and  States  in  the  Territory,  which  are  to  remain  un¬ 
alterable,  unless  by  common  consent.  The  first  provides 
for  the  freedom  of  religious  opinion  and  worship.  The 
second  provides  for  the  right  to  the  writ  of  habeas  cor¬ 
pus  ;  for  the  trial  by  jury  ;  for  a  proportionate  represent¬ 
ation  in  the  Legislature  ;  for  judicial  proceedings  accord- 

*  The  late  Hon.  Nathan  Danes  of  Beverly,  Massachusetts. 


140  CONSTITUTION  OF  THE  UNITED  STATES. 

ing  to  the  course  of  the  common  law  ;  for  capital  offences 
being  bailable  ;  for  fines  being  moderate,  and  punishments 
not  being  cruel  or  unusual  ;  for  no  man’s  being  deprived 
of  his  liberty  or  property,  but  by  the  judgement  of  his 
peers,  or  the  law  of  the  land  ;  for  full  compensation  for 
property  taken,  or  services  demanded,  for  the  public  exi¬ 
gencies  ;  u  and,  for  the  just  preservation  of  rights  and 
property,  that  no  law  ought  ever  to  be  made,  or  have 
force  in  the  said  Territory,  that  shall,  in  any  manner 
whatever,  interfere  with ,  or  affect  private  contracts  or 
engagements ,  bona  ficle ,  and  without  fraud,  previously 
formed.”  The  third  provides  for  the  encouragement 
of  religion,  and  education,  and  schools,  and  for  good 
faith  and  due  respect  for  the  rights  and  property  of  the 
Indians.  The  fourth  provides,  that  the  Territory,  and 
States  formed  therein,  shall  for  ever  remain  a  part  of  the 
Confederacy,  subject  to  the  constitutional  authority  of 
Congress  ;  that  the  inhabitants  shall  be  liable  to  be  taxed 
proportionately  for  the  public  expenses  ;  that  the  Legisla¬ 
tures  in  the  Territory  shall  never  interfere  with  the  prima¬ 
ry  disposal  of  the  soil  by  Congress,  nor  with  their  regula¬ 
tions  for  securing  the  title  to  the  soil  to  purchasers  ;  that 
no  tax  shall  be  imposed  on  lands,  the  property  of  the 
United  States  ;  and  non-resident  proprietors  shall  not  be 
taxed  more  than  residents  ;  that  the  navigable  waters 
leading  into  the  Mississippi  and  St.  Lawrence,  and  the 
carrying  places  between  the  same,  shall  be  common  high¬ 
ways,  and  for  ever  free.  The  fifth  provides,  that  there 
shall  be  formed  in  the  Territory  not  less  than  three,  nor 
more  than  five  States,  with  certain  boundaries  ;  and  when¬ 
ever  any  of  the  said  States  shall  contain  sixty  thousand 
free  inhabitants,  such  State  shall  (and  may  not  before)  be 
admitted,  by  its  delegates,  into  Congress,  on  an  equal  foot¬ 
ing  with  the  original  States  in  all  respects  whatever,  and 
shall  be  at  liberty  to  form  a  permanent  Constitution  and 
State  government,  provided  it  shall  be  republican,  and  in 
conformity  to  these  articles  of  compact.  The  sixth  and 
last  provides,  that  there  shall  be  neither  slavery  nor  in¬ 
voluntary  servitude  in  the  said  Territory,  otherwise  than 
in  the  punishment  of  crimes  ;  but  fugitives  from  other 


ADMISSION  OF  NEW  STATES. 


141 


States,  owing  service  therein,  may  be  reclaimed.  Such 
is  a  brief  outline  of  this  most  important  ordinance,  the 
effects  of  which  upon  the  destinies  of  the  country  have 
already  been  abundantly  demonstrated  in  the  Territory,  by 
an  almost  unexampled  prosperity  and  rapidity  of  popula¬ 
tion,  by  the  formation  of  republican  governments,  and  by 
an  enlightened  system  of  jurisprudence.  Already  five 
States,  composing  a  part  of  that  Territory,  have  been  ad¬ 
mitted  into  the  Union  ;  and  others  are  fast  advancing  to¬ 
wards  the  same  grade  of  political  dignity. 

§  219..  The  proviso,  reserving  the  claims  of  the  Union, 
as  well  as  of  the  several  States,  was  adopted  from  abun¬ 
dant  caution,  to  quiet  public  jealousies  upon  the  subject 
of  the  contested  titles,  which  were  then  asserted  by  some 
of  the  States  to  some  parts  of  the  Western  Territory. 
Happily,  these  sources  of  alarm  and  irritation  have  long 
since  been  dried  up. 

§  220.  And  here  is  closed  our  Review  of  the  express 
powers  conferred  upon  Congress.  There  are  other  inci¬ 
dental  and  implied  powers,  resulting  from  other  provisions 
of  the  Constitution,  which  will  naturally  present  them¬ 
selves  to  the  mind  in  our  future  examination  of  those 
provisions.  At  present,  it  may  suffice  to  say,  that,  with 
reference  to  due  energy  in  the  General  Government,  to 
due  protection  of  the  national  interests,  and  to  due  secu¬ 
rity  to  the  Union,  fewer  powers  could  scarcely  have  been 
granted,  without  jeoparding  the  existence  of  the  whole 
•system.  Without  the  power  to  lay  and  collect  taxes,  to 
provide  for  the  common  defence,  and  promote  the  gen¬ 
eral  welfare,  the  whole  system  would  have  been  vain  and 
illusory.  Without  the  power  to  borrow  money  upon  sud¬ 
den  or  unexpected  emergencies,  the  National  Government 
might  have  been  embarrassed,  and  sometimes  have  been 
incapable  of  performing  its  own  proper  functions  and  du¬ 
ties.  Without  the  power  to  declare  war  and  raise  armies, 
and  provide  a  navy,  the  whole  country  would  have  been 
placed  at  the  mercy  of  foreign  nations,  or  of  invading  foes, 
who  should  trample  upon  our  rights  and  liberties.  With¬ 
out  the  power  exclusively  to  regulate  commerce,  the  inter¬ 
course  between  the  States  would  have  been  liable  to  con- 


142  CONSTITUTION  OF  THE  UNITED  STATES. 

stant  jealousies,  rivalries,  and  dissensions  ;  and  the  inter¬ 
course  with  foreign  nations  would  have  been  liable  to 
mischievous  interruptions,  from  secret  hostilities,  or  open 
retaliatory  restrictions.  The  other  powers  are  principally 
auxiliary  to  these  ;  and  are  dictated  by  an  enlightened  pol¬ 
icy,  a  devotion  to  justice,  and  a  regard  to  the  permanence 
of  the  Union.  The  wish  of  every  patriot  must  be,  that 
the  system  thus  formed  may  be  perpetual,  and  that  the 
powers  thus  conferred  may  be  constantly  used  for  the 
purposes,  for  which  they  were  originally  given,  for  the 
promotion  of  the  true  interests  of  all  the  States,  and  not 
for  the  gratification  of  party  spirit,  or  the  aggrandizement 
of  rulers  at  the  expense  of  the  people. 


CHAPTER  XXVL 
Prohibitions  on  the  United  States. 

§  221.  We  next  come  to  the  consideration  of  the  pro¬ 
hibitions  and  limitations  upon  the  powers  of  Congress* 
which  are  contained  in  the  ninth  section  of  the  first  arti¬ 
cle,  passing  by  such,  as  have  been  already  incidentally 
discussed. 

§  222.  The  first  clause  is,  Ci  The  migration  or  im¬ 
portation  of  such  persons,  as  any  of  the  States  now  ex¬ 
isting  shall  think  proper  to  admit,  shall  not  be  prohibited 
by  the  Congress,  prior  to  the  year  eighteen  hundred  and 
eight.  But  a  tax  or  duty  may  be  imposed  upon  such 
importation,  not  exceeding  ten  dollars  for  each  person.” 

§  223.  This  clause,  as  is  manifest  from  its  language* 
was  designed  solely  to  reserve  to  the  Southern  States* 
for  a  limited  period,  the  right  to  import  slaves.  It  is  to 
the  honor  of  America,  that  she  should  have  set  the  first 
example  of  interdicting  and  abolishing  the  slave  trade,  in 
modern  times.  It  is  well  known,  that  it  constituted  a 
grievance,  of  which  some  of  the  Colonies  complained, 
before  the  Revolution,  that  the  introduction  of  slaves  was. 
encouraged  by  the  parent  country,  and  that  the  prohibi- 


PROHIBITIONS  ON  THE  UNITED  STATES.  143 

tory  laws,  passed  by  the  Colonies,  were  negatived  by  the 
Crown,  it  was,  doubtless,  desirable,  that  the  importation 
of  slaves  should  have  been  at  once  interdicted  through¬ 
out  the  Union.  But  it  was  indispensable  to  yield  some¬ 
thing  to  the  prejudices,  the  wishes,  and  the  supposed  in¬ 
terests  of  the  South.  And  it  ought  to  be  considered  as 
a  great  point  gained,  in  favor  of  humanity,  that  a  period 
of  twenty  years  should  enable  Congress  to  terminate,  in 
America,  (as  Congress  in  fact  have  terminated  the  Afri¬ 
can  slave  trade,)  a  traffic,  which  has  so  long  and  so  loud¬ 
ly  upbraided  the  morals  and  justice  of  modern  nations. 

§  224.  The  next  clause  is,  u  The  privilege  of  the 
writ  of  habeas  corpus  shall  not  be  suspended,  unless 
when,  in  cases  of  rebellion  or  invasion,  the  public  safety 
may  require  it.”  In  order  to  understand  the  exact  mean¬ 
ing  of  the  terms  here  used,  recourse  must  be  had  to  the 
common  law.  The  writ  of  habeas  corpus ,  here  spoken 
of,  is  a  writ  known  to  the  common  law,  and  used  in  all 
cases  of  confinement,  or  imprisonment  of  any  party,  in 
order  to  ascertain  whether  it  is  lawful  or  not.  The  writ 
commands  the  person,  who  detains  the  party,  to  produce 
his  body,  with  the  day  and  cause  of  his  detention,  before 
the  Court  or  Judge,  who  issues  the  writ,  to  do,  submit 
to,  and  receive,  whatever  the  Court  or  Judge  shall  direct 
at  the  hearing.  It  is  hence  called  the  writ  of  habeas  cor¬ 
pus  ad  subjiciendum ,  from  the  effective  words  of  the  writ, 
(when  it  was  issued,  as  it  originally  was,  in  the  Latin 
language)  that  you  (the  person,  detaining  the  party,)  have 
the  body  ( habeas  corpus )  to  submit  (ad  subjiciendum)  to 
the  order  of  the  Court  or  Judge.  And  if  the  cause  of  de¬ 
tention  is  found  to  be  insufficient,  or  illegal,  the  party  is 
immediately  set  at  liberty  by  the  order  of  the  Court  or 
Judge.  It  is  justly,  therefore,  esteemed  the  great  bul¬ 
wark  of  personal  liberty,  and  is  grantable,  as  a  matter  of 
right,  to  the  party  imprisoned.  But  as  it  had  often,  for 
frivolous  reasons  of  state,  been  suspended  or  denied  in  the 
parent  country,  to  the  grievous  oppression  of  the  subject, 
it  is  made  a  matter  of  constitutional  right  in  all  cases,  ex¬ 
cept  when  the  public  safety  may,  in  cases  of  rebellion  or 
invasion,  require  it.  The  exception  is  reasonable,  since 


144  CONSTITUTION  OF  THE  UNITED  STATES. 

cases  of  great  urgency  may  arise,  in  which  the  suspen¬ 
sion  may  be  indispensable  for  the  preservation  of  the  lib¬ 
erties  of  the  country  against  traitors  and  rebels. 

§  225.  The  next  clause  is,  u  No  bill  of  attainder,  or 
ex  post  facto  law,  shall  be  passed.”  A  bill  of  attainder, 
in  its  technical  sense,  is  an  act  passed  by  the  legislature, 
convicting  a  person  of  some  crime,  for  which  it  inflicts 
upon  him,  without  any  trial,  the  punishment  of  death. 
If  it  inflicts  a  milder  punishment,  it  is  usually  called  a  bill 
of  pains  and  penalties.  Such  acts  are  in  the  highest  de¬ 
gree  objectionable,  and  tyrannical,  since  they  deprive  the 
party  of  any  regular  trial  by  jury,  and  deprive  him  of 
his  life,  liberty,  and  property,  without  any  legal  proof  of 
his  guilt.  In  a  republican  government,  such  a  proceed¬ 
ing  is  utterly  inconsistent  with  first  principles.  It  would 
be  despotism  in  its  worst  form,  by  arming  a  popular  Le¬ 
gislature  with  the  power  to  destroy,  at  its  will,  the  most 
virtuous  and  valuable  citizens  of  the  state. 

§  226.  To  the  same  class,  belong  ex  post  facto  laws, 
that  is,  (in  a  literal  interpretation  of  the  phrase,)  laws 
made  after  the  act  is  done.  In  a  general  sense,  all  ret 
rospective  laws  are  ex  post  facto  ;  but  the  phrase  is  here 
used  to  designate  laws  to  punish,  as  public  offences,  acts, 
which,  at  the  time  when  they  were  done,  were  lawful,  or 
were  not  public  crimes,  or,  if  crimes,  which  were  not  lia¬ 
ble  to  so  severe  a  punishment.  It  requires  no  reasoning 
to  establish  the  wisdom  of  a  prohibition,  which  puts  a 
fixed  restraint  upon  such  harsh  legislation.  In  truth,  the 
existence  of  such  a  power  in  a  legislature  is  utterly  in¬ 
compatible  with  all  just  notions  of  the  true  ends  and 
objects  of  a  republican  government. 

§227.  The  next  clause  (not  already  commented  on) 
is,  uNo  money  shall  be  drawn  from  the  treasury,  but  in 
consequence  of  appropriations  made  by  law.  And  a 
regular  statement  and  account  of  the  receipts  and  expen¬ 
ditures  of  all  public  money  shall  be  published  from  time 
to  time.”  The  object  of  this  clause  is,  to  secure  regu¬ 
larity,  punctuality,  fidelity,  and  responsibility,  in  the  keep¬ 
ing  and  disbursement  of  the  public  money.  No  money 
can  be  drawn  from  the  treasury  by  any  officer,  unless 


PROHIBITIONS  ON  THE  UNITED  STATES.  145 


under  appropriations  made  by  some  act  of  Congress.  As 
'  all  the  taxes  raised  from  the  people,  as  well  as  the  rev¬ 
enues  arising  from  other  sources,  are  to  be  applied  to  the 
discharge  of  the  expenses,  and  debts,  and  other  engage¬ 
ments  of  the  government,  it  is  highly  proper,  that  Con¬ 
gress  should  possess  the  power  to  decide,  how  and  when 
any  money  should  be  applied  for  these  purposes.  If  it 
were  otherwise,  the  Executive  would  possess  an  unbound¬ 
ed  power  over  the  public  purse  of  the  nation  ;  and  might 
apply  all  its  monied  resources  at  his  pleasure.  The  pow¬ 
er  to  control  and  direct  the  appropriations,  constitutes  a 
most  useful  and  salutary  check'  upon  profusion  and  ex¬ 
travagance,  as  well  as  upon  corrupt  influence  and  public 
peculation.  In  arbitrary  governments,  the  prince  lev¬ 
ies  what  money  he  pleases  from  his  subjects,  disposes  of 
it,  as  he  thinks  proper,  and  is  beyond  responsibility  or 
reproof.  It  is  wise,  in  a  republic,  to  interpose  every 
restraint,  by  which  the  public  treasure,  the  common  fund 
of  all,  should  be  applied,  with  unshrinking  honesty,  to 
such  objects,  as  legitimately  belong  to  the  common  de¬ 
fence,  and  the  general  welfare.  Congress  is  made  the 
guardian  of  this  treasure  ;  and,  to  make  their  responsibility 
complete  and  perfect,  a  regular  account  of  the  receipts 
and  expenditures  is  required  to  be  published,  that  the 
people  may  know,  what  money  is  expended,  for  what 
purposes,  and  by  what  authority. 

§  228 .  The  next  clause  is,  “  No  title  of  nobility 
shall  be  granted  by  the  United  States  ;  and  no  person, 
holding  any  office  of  profit  or  trust  under  them,  shall, 
without  the  consent  of  the  Congress,  accept  of  any  pres¬ 
ent,  emolument,  office,  or  title,  of  any  kind  whatever, 
from  any  king,  prince,  or  foreign  state.”  A  perfect 
equality  of  rights,  privileges,  and  rank,  being  contemplated 
by  the  Constitution  among  all  citizens,  there  is  a  manifest 
propriety  in  prohibiting  Congress  from  creating  any  titles 
of  nobility.  The  other  prohibition,  as  to  presents,  emolu¬ 
ments,  offices,  and  titles  from  foreign  governments,  besides 
aiding  the  same  general  object,  subserves  a  more  important 
policy,  founded  on  the  just  jealousy  of  foreign  corruption 
and  undue  influence  exerted  upon  our  national  officers,  it 

13  ,  xiii. 


146  CONSTITUTION  OF  THE  UNITED  STATES. 

seeks  to  destroy,  in  their  origin,  all  the  blandishments  from 
foreign  favors,  and  foreign  titles,  and  all  the  temptations 
to  a  departure  from  official  duty  by  receiving  foreign  re¬ 
wards  and  emoluments.  No  officer  of  the  United  States 
can  without  guilt  wear  honors  borrowed  from  foreign  sov¬ 
ereigns,  or  touch  for  personal  profit  any  foreign  treasure. 


CHAPTER  XXVII. 

Prohibitions  on  the  States. 

§  229.  Such  are  the  prohibitions  upon  the  govern¬ 
ment  of  the  United  States.  And  we  next  proceed  to 
the  prohibitions  upon  the  States,  which  are  not  less 
important  in  themselves,  or  less  necessary  to  the  security 
of  the  Union.  They  are  contained  in  the  tenth  section 
of  the  first  article. 

§  230.  The  first  clause  is,  u  No  State  shall  enter  into 
any  treaty;  alliance,  or  confederation  ;  grant  letters  of 
marque  or  reprisal ;  coin  money  ;  emit  bills  of  credit  ; 
make  any  thing  but  gold  or  silver  coin  a  tender  in  payment 
of  debts  ;  pass  any  bill  of  attainder,  ex  post  facto  law,  or 
law  impairing  the  obligation  of  contracts ;  or  grant  any 
title  of  nobility.” 

§  231.  The  prohibition  against  a  State’s  entering  into 
any  treaty,  alliance,  or  confederation,  is  indispensable  to 
the  preservation  of  the  rights  and  powers  of  the  National 
Government.  A  State  might  otherwise  enter  into  engage¬ 
ments  with  foreign  governments,  utterly  subversive  of 
the  policy  of  the  National  Government,  or  injurious  to  the 
rights  and  interests  of  the  other  States.  One  State  might 
enter  into  a  treaty  or  alliance  with  France,  and  another 
with  England,  and  another  with  Spain,  and  another  with 
Russia, — each  in  its  general  objects  inconsistent  with  the 
other  ;  and  thus,  the  seeds  of  discord  might  be  spread 
over  the  whole  Union. 

§232.  The  prohibition  to  u  grant  letters  of  marque 
and  reprisal”  stands  on  the  same  ground.  This  power 


PROHIBITIONS  ON  THE  STATES. 


147 


would  hazard  the  peace  of  the  Union  by  subjecting  it  to 
the  passions,  resentments,  or  policy  of  a  single  State. 
If  any  State  might  issue  letters  of  marque  or  reprisal  at 
its  own  mere  pleasure,  it  might  at  once  involve  the  whole 
Union  in  a  public  war  ;  or  bring  on  retaliatory  measures 
by  the  foreign  government,  which  might  cripple  the 
commerce,  or  destroy  the  vital  interests  of  other  States. 
The  prohibition  is,  therefore,  essential  to  the  public 
safety. 

§  233.  The  prohibition  to  u  coin  money”  is  necessary 
to  our  domestic  interests.  The  existence  of  the  power 
in  the  States  would  defeat  the  salutary  objects  intended, 
by  confiding  the  like  power  to  the  National  Government. 
It  would  have  a  tendency  to  introduce  a  base  and  varia¬ 
ble  currency,  perpetually  liable  to  frauds,  and  embarrass¬ 
ing  to  the  commercial  intercourse  of  the  States. 

§  234.  The  prohibition  to  u  emit  bills  of  credit.” — 
Bills  of  credit  are  a  well-known  denomination  of  paper 
money,  issued  by  the  Colonies  before  the  Revolution, 
and  afterwards  by  the  States,  in  a  most  profuse  degree. 
These  bills  of  credit  had  no  adequate  funds  appropriated 
to  redeem  them  ;  and  though  on  their  face  they  were 
often  declared  payable  in  gold  and  silver,  they  were  in 
fact  never  so  paid.  The  consequence  was,  that  they 
became  the  common  currency  of  the  country,  in  a  con¬ 
stantly  depreciating  state,  ruinous  to  the  commerce  and 
credit,  and  disgraceful  to  the  good  faith  of  the  country. 
The  evils  of  the  system  were  of  a  most  aggravated  nature, 
and  could  not  be  cured,  except  by  an  entire  prohibition 
of  any  future  issues  of  paper  money.  And,  indeed,  the 
prohibition  to  coin  money  would  be  utterly  nugatory,  if 
the  States  might  still  issue  a  paper  currency  for  the  same 
purpose. 

§  235.  But  the  inquiry  here  naturally  occurs  ;  What  is 
the  true  meaning  of  the  phrase  u  bills  of  credit”  in  the 
Constitution  ?  In  its  enlarged,  and  perhaps  in  its  literal 
sense,  it  may  comprehend  any  instrument,  by  which  a 
State  engages  to  pay  money  at  a  future  day,  (and,  of 
course,  for  which  it  obtains  a  present  credit  ;)  and  thus  it 
would  include  a  certificate  given  for  money  borrowed. 


148  CONSTITUTION  OF  THE  UNITED  STATES. 


But  the  language  of  the  Constitution  itself,  and  the  mis¬ 
chief  to  be  prevented,  which  we  know  from  the  history 
of  our  country,  equally  limit  the  interpretation  of  the 
terms.  The  word  “  emit”  is  never  employed  in  de¬ 
scribing  those  contracts,  by  which  a  State  binds  itself  to 
pay  money  at  a  future  day  for  services  actually  received, 
or  for  money  borrowed  for  present  use.  Nor  are  instru¬ 
ments,  executed  for  such  purposes,  in  common  language 
denominated  “  bills  of  credit.”  To  emit  bills  of  credit, 
conveys  to  the  mind  the  idea  of  issuing  paper,  intend¬ 
ed  to  circulate  through  the  community  for  ordinary  pur¬ 
poses,  as  money,  which  paper  is  redeemable  at  a  future 
day.  This  is  the  sense,  in  which  the  terms  of  the  Con¬ 
stitution  have  been  generally  understood.  The  phrase 
(as  we  have  seen)  was  well  known,  and  generally  used  to 
indicate  the  paper  currency,  issued  by  the  States  during 
their  colonial  dependence.  During  the  war  of  our  Revo¬ 
lution,  the  paper  currency  issued  by  Congress  was  con¬ 
stantly  denominated,  in  the  acts  of  that  body,  bills  of 
credit ;  and  the  like  appellation  was  applied  to  similar 
currency  issued  by  the  States.  The  phrase  had  thus 
acquired  a  determinate  and  appropriate  meaning.  At  the 
time  of  the  adoption  of  the  Constitution,  bills  of  credit 
were  universally  understood  to  signify  a  paper  medium 
intended  to  circulate  between  individuals,  and  between 
government  and  individuals,  for  the  ordinary  purposes  of 
society.  Such  a  medium  has  always  been  liable  to  con¬ 
siderable  fluctuation.  Its  value  is  continually  changing  ; 
and  these  changes,  often  great  and  sudden,  expose  indi¬ 
viduals  to  immense  losses,  are  the  sources  of  ruinous 
speculations,  and  destroy  all  proper  confidence  between 
man  and  man.  In  no  country,  more  than  our  own,  had 
these  truths  been  felt  in  all  their  force.  In  none,  had 
more  intense  suffering,  or  more  wide-spreading  ruin 
accompanied  the  system.  It  was,  therefore,  the  object 
of  the  prohibition  to  cut  up  the  whole  mischief  by  the 
roots,  because  it  had  been  deeply  felt  throughout  all  the 
States,  and  had  deeply  affected  the  prosperity  of  all. 
The  object  of  the  prohibition  was  not  to  prohibit  the 
thing,  when  it  bore  a  particular  name  ;  but  to  prohibit  the 


PROHIBITIONS  ON  THE  STATES. 


149 


thing,  whatever  form  or  name  it  might  assume.  If  the 
words  are  not  merely  empty  sounds,  the  prohibition  must 
comprehend  the  emission  of  any  paper  medium  by  a  State 
government  for  the  purposes  of  common  circulation.  It 
would  be  preposterous  to  suppose,  that  the  Constitution 
meant  solemnly  to  prohibit  an  issue  under  one  denomina¬ 
tion,  leaving  the  power  complete  to  issue  the  same  thing 
under  another.  It  can  never  be  seriously  contended,  that 
the  Constitution  means  to  prohibit  names,  and  not  things  ; 
to  deal  with  shadows,  and  to  leave  substances.  What 
would  be  the  consequence  of  such  a  construction  ?  That 
a  very  important  act,  big  with  great  and  ruinous  mischief, 
and  on  that  account  forbidden  by  words  the  most  appro¬ 
priate  for  its  description,  might  yet  be  performed  by  the 
substitution  of  a  name.  That  the  Constitution,  even  in  one 
of  its  vital  provisions,  might  be  openly  evaded  by  giving 
a  new  name  to  an  old  thing.  Call  the  thing  a  bill  of  credit, 
and  it  is  prohibited.  Call  the  same  thing  a  certificate, 
and  it  is  constitutional. 

§  236.  Connected  with  this,  is  the  prohibition,  No 
State  shall  u  make  any  thing  but  gold  and  silver  coin  a 
tender  in  payment  of  debts.”  The  history  of  the  State 
laws  on  this  subject,  while  we  were  Colonies,  as  well  as 
during  the  Revolution,  and  afterwards  before  the  adoption 
of  the  Constitution,  is  startling  at  once  to  our  morals,  to 
our  patriotism,  and  to  our  sense  of  justice.  In  the  inter¬ 
mediate  period  between  the  commencement  of  the  Revo¬ 
lutionary  War,  and  the  adoption  of  the  Constitution,  the 
system  had  attained  its  most  appalling  character.  Not 
only  was  paper  money  declared  to  be  a  tender  in  payment 
of  debts  ;  but  other  laws,  having  the  same  general  object, 
and  interfering  with  private  debts,  under  the  name  of 
appraisement  laws,  instalment  laws,  and  suspension  laws, 
thickened  upon  the  statute  book  of  many  States  in  the 
Union,  until  all  public  confidence  was  lost,  and  all  private 
credit  and  morals  were  prostrated.  The  details  of  the 
evils,  resulting  from  this  source,  can  scarcely  be  compre¬ 
hended  in  our  day.  But  they  were  so  enormous,  that 
the  whole  country  seemed  involved  in  a  general  bank¬ 
ruptcy  ;  and  fraud  and  chicanery  obtained  an  undisputed 

13* 


150  CONSTITUTION  OF  THE  UNITED  STATES. 

mastery.  Nothing  but  an  absolute  prohibition,  like  that 
contained  in  the  Constitution,  could  arrest  the  overwhelm¬ 
ing  flood  ;  and  it  was  accordingly  hailed  with  the  most 
sincere  joy  by  ail  good  citizens.  It  has  given  us  that 
healthy  and  sound  currency,  and  that  solid  private  credit, 
which  constitute  the  true  foundation  of  our  prosperity, 
industry,  and  enterprise. 

§  237.  The  prohibition,  to  u  pass  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obligation  of  con¬ 
tracts,”  requires  scarcely  any  vindication  or  explanation, 
beyond  what  has  been  already  given.  The  power  to 
pass  bills  of  attainder,  and  ex  post  facto  laws,  (the  nature 
of  which  has  been  already  sufficiently  explained,)  is  quite 
as  unfit  to  be  intrusted  to  the  States,  as  to  the  General 
Government.  It  was  exercised  by  the  States  during  the 
Revolutionary  War,  in  the  shape  of  confiscation  laws, 
to  an  extent,  which,  upon  cool  reflection,  every  sincere 
patriot  must  regret.  Laws  u  impairing  the  obligation  of 
contracts”  are  still  more  objectionable.  They  interfere 
with,  and  disturb,  and  destroy,  private  rights,  solemnly 
secured  by  the  plighted  faith  of  the  parties.  They  bring 
on  the  same  ruinous  effects,  as  paper  tender  laws,  instal¬ 
ment  laws,  and  appraisement  laws,  which  are  but  varieties 
of  the  same  general  noxious  policy.  And  they  have  been 
truly  described,  as  contrary  to  the  first  principles  of  the 
social  compact  and  to  every  principle  of  sound  legislation. 

§  238.  Although  the  language  of  this  clause,  “  law  im¬ 
pairing  the  obligation  of  contracts,”  would  seem,  at  first 
view,  to  be  free  from  any  real  ambiguity  ;  yet  there  is 
not  perhaps  a  single  clause  of  the  Constitution,  which 
has  given  rise  to  more  acute  and  vehement  controversy. 
What  is  a  contract.  ?  What  is  the  obligation  of  a  con¬ 
tract  ?  What  is  impairing  a  contract  ?  To  what  classes 
of  laws  does  the  prohibition  apply  ?  To  what  extent  does 
it  reach,  so  as  to  control  prospective  legislation  on  the 
subject  of  contracts  ?  These  and  many  other  questions, 
of  no  small  nicety  and  intricacy,  have  vexed  the  legisla¬ 
tive  halls,  as  well  as  the  judicial  tribunals,  with  an  uncount¬ 
ed  variety  and  frequency  of  litigation  and  speculation. 

§  239.  In  the  first  place,  What  is  to  be  deemed  a  con- 


PROHIBITIONS  ON  THE  STATES. 


151 


tract,  in  the  constitutional  sense  of  this  clause  ?  A  con¬ 
tract  is  an  agreement  to  do,  or  not  to  do,  a  particular 
thing  ;  or  (as  was  said  on  another  occasion)  a  contract  is 
a  compact  between  two  or  more  persons.  A  contract  is 
either  executory,  or  executed.  An  executory  contract 
is  one,  in  which  a  party  binds  himself  to  do,  or  not  to  do, 
a  particular  thing.  An  executed  contract  is  one,  in  which 
the  object  of  the  contract  is  performed.  This  differs  in 
nothing  from  a  grant  ;  for  a  contract  executed  conveys  a 
thing  in  possession  ;  a  contract  executory  conveys  only 
a  thing  in  action.  Since,  then,  a  grant  is  in  fact  a  con¬ 
tract  executed,  the  obligation  of  which  continues  ;  and 
since  the  Constitution  uses  the  general  term,  contract , 
without  distinguishing  between  those,  which  are  executory, 
and  those,  which  are  executed  ;  it  must  be  construed  to 
comprehend  the  former,  as  well  as  the  latter.  A  State 
law,  therefore,  annulling  conveyances  between  individu¬ 
als,  and  declaring,  that  the  grantors  shall  stand  seized  of 
their  former  estates,  notwithstanding  those  grants,  W’ould 
be  as  repugnant  to  the  Constitution,  as  a  State  law,  dis¬ 
charging  the  vendors  from  the  obligation  of  executing 
their  contracts  of  sale  by  conveyances.  It  would  be 
strange,  indeed,  if  a  contract  to  convey  were  secured  by 
the  Constitution,  while  an  absolute  conveyance  remained 
unprotected.  That  the  contract,  while  executory,  was 
obligatory  ;  but  when  executed,  might  be  avoided. 

§  240.  Contracts,  too,  are  express,  or  implied.  Ex¬ 
press  contracts  are,  where  the  terms  of  the  agreement  are 
openly  avowed,  and  uttered  at  the  time  of  the  making  of 
them.  Implied  contracts  are  such,  as  reason  and  justice 
dictate  from  the  nature  of  the  transaction,  and  which, 
therefore,  the  law  presumes,  that  every  man  undertakes  to 
perform.  The  Constitution  makes  no  distinction  between 
the  one  class  of  contracts  and  the  other.  It  then  equally 
embraces,  and  equally  applies  to  both.  Indeed,  as  by  far 
the  largest  class  of  contracts  in  civil  society,  in  the  ordinary 
transactions  of  life,  are  implied,  there  would  be  very  little 
object  in  securing  the  inviolability  of  express  contracts, 
if  those,  which  are  implied,  might  be  impaired  by  State 
legislation.  The  Constitution  is  not  chargeable  with 


152  CONSTITUTION  OF  THE  UNITED  STATES. 

such  folly,  or  inconsistency.  Every  grant,  in  its  own 
nature,  amounts  to  an  extinguishment  of  the  right  of  the 
grantor,  and  implies  a  contract  not  to  reassert  it.  A 
party  is,  therefore,  always  estopped  by  his  own  grant. 
How  absurd  would  it  be  to  provide,  that  an  express 
covenant  by  a  party,  as  a  muniment  attendant  upon  the 
estate,  should  bind  him  for  ever,  because  executory,  and 
resting  in  action  ;  and  yet,  that  he  might  reassert  his 
title  to  the  estate,  and  dispossess  his  grantee,  because 
there  was  only  an  implied  covenant  not  to  reassert  it. 

§  241.  In  the  next  place,  What  is  the  obligation  of  a 
contract  ?  It  seems  agreed,  that,  when  the  obligation  of 
contracts  is  spoken  of  in  the  Constitution,  we  are  to  un¬ 
derstand,  not  the  mere  moral,  but  the  legal  obligation  of 
contracts.  The  moral  obligation  of  contracts  is,  so  far 
as  human  society  is  concerned,  of  an  imperfect  kind, 
which  the  parties  are  left  free  to  obey  or  not,  as  they 
please.  It  is  addressed  to  the  conscience  of  the  parties, 
under  the  solemn  admonitions  of  accountability  to  the 
Supreme  Being.  No  human  lawgiver  can  either  impair, 
or  reach  it.  The  Constitution  has  not  in  contemplation 
any  such  obligations,  but  such  only,  as  might  be  im¬ 
paired  by  a  State,  if  not  prohibited.  It  is  the  civil  obli¬ 
gation  of  contracts,  which  it  is  designed  to  reach,  that  is, 
the  obligation,  which  is  recognised  by,  and  results  from, 
the  law  of  the  State,  in  which  it  is  made.  If,  therefore, 
a  contract,  when  made,  is  by  the  law  of  the  State  de¬ 
clared  to  be  illegal,  or  deemed  to  be  a  nullity,  or  a  naked 
pact ,  or  promise,  it  has  no  civil  obligation  ;  because  the 
law,  in  such  cases,  forbids  its  having  any  binding  efficacy, 
or  force.  It  confers  no  legal  right  on  the  one  party,  and 
no  correspondent  legal  duty  on  the  other.  There  is  no 
means  allowed,  or  recognised  to  enforce  it  ;  for  the  max¬ 
im  is,  that  from  a  mere  naked  promise  no  action  arises. 
But  when  it  does  not  fall  within  the  predicament  of  being 
either  illegal,  or  void,  its  obligatory  force  is  coextensive 
with  its  stipulations. 

§  242.  Nor  is  this  obligatory  force  so  much  the  result 
of  the  positive  declarations  of  the  municipal  law,  as  of 
the  general  principles  of  natural,  or  (as  it  is  sometimes 


PROHIBITIONS  ON  THE  STATES. 


153 


called)  universal,  law.  In  a  state  of  nature,  independent 
of  the  obligations  of  positive  law,  contracts  may  be 
formed,  and  their  obligatory  force  be  complete.  Be¬ 
tween  independent  nations,  treaties  and  compacts  are 
formed,  which  are  deemed  universally  obligatory  ;  and 
yet  in  no  just  sense  can  they  be  deemed  dependent  on 
municipal  law.  Nay,  there  may  exist  (abstractly  speak¬ 
ing)  a  perfect  obligation  in  contracts,  where  there  is  no 
known  and  adequate  means  to  enforce  them.  As,  for 
instance,  between  independent  nations,  where  their  rela¬ 
tive  strength  and  power  preclude  the  possibility,  on  the 
side  of  the  weaker  party,  of  enforcing  them.  So,  in  the 
same  government,  where  a  contract  is  made  by  a  State 
with  one  of  its  own  citizens,  which  yet  its  laws  do  not 
permit  to  be  enforced  by  any  action  or  suit.  In  this 
predicament  are  the  United  States,  who  are  not  suable 
on  any  contracts  made  by  themselves  ;  but  no  one  doubts, 
that  these  are  still  obligatory  on  the  United  States.  Yet 
their  obligation  is  not  recognised  by  any  positive  muni¬ 
cipal  law,  in  a  great  variety  of  cases.  It  depends  alto¬ 
gether  upon  principles  of  public  or  universal  law.  Still, 
in  these  cases,  there  is  a  right  in  the  one  party  to  have  the 
contract  performed,  and  a  duty  on  the  other  side  to  per¬ 
form  it.  But,  generally  speaking,  when  we  speak  of  the 
obligation  of  a  contract,  we  include  in  the  idea  some 
known  means  acknowledged  by  the  municipal  law  to  en¬ 
force  it.  Where  all  such  means  are  absolutely  denied, 
the  obligation  of  the  contract  is  understood  to  be  im¬ 
paired,  although  it  may  not  be  completely  annihilated. 
Rights  may,  indeed,  exist,  without  any  present  adequate 
correspondent  remedies  between  private  persons.  Thus, 
a  State  may  refuse  to  allow  imprisonment  for  debt  ;  and 
the  debtor  may  have  no  property.  But  still  the  right  of 
the  creditor  remains  ;  and  he  may  enforce  it  against  the 
future  property  of  the  debtor.  So,  a  debtor  may  die 
without  leaving  any  known  estate,  or  without  any  known 
representative.  In  such  cases,  we  should  not  say,  that 
the  right  of  the  creditor  was  gone  ;  but  only,  that  there 
was  nothing,  on  which  it  could  presently  operate.  But 
suppose  an  administrator  should  be  appointed,  and  prop- 


154 


CONSTITUTION  OF  THE  UNITED  STATES. 


erty  in  contingency  should  fall  in,  the  right  might  then  be 
enforced  to  the  extent  of  the  existing  means. 

§  243.  The  civil  obligation  of  a  contract,  then,  although 
it  can  never  arise,  or  exist,  contrary  to  positive  law,  may 
arise  or  exist  independently  of  it  ;  and  it  may  be,  exist, 
notwithstanding  there  may  be  no  present  adequate  reme¬ 
dy  to  enforce  it.  Wherever  the  municipal  law  recog¬ 
nises  an  absolute  duty  to  perform  a  contract,  there  the 
obligation  to  perform  it  is  complete,  although  there  may 
not  be  a  perfect  remedy. 

§  244.  In  the  next  place,  What  may  properly  be 
deemed  impairing  the  obligation  of  contracts,  in  the  sense 
of  the  Constitution  ?  It  is  perfectly  clear,  that  any  law, 
which  enlarges,  abridges,  or  in  any  manner  changes  the 
intention  of  the  parties,  resulting  from  the  stipulations  in 
the  contract,  necessarily  impairs  it.  The  manner  or  de¬ 
gree,  in  which  this  change  is  effected,  can  in  no  respect 
influence  the  conclusion  ;  for,  whether  the  law  affect  the 
validity,  the  construction,  the  duration,  the  discharge,  or 
the  evidence  of  the  contract,  it  impairs  its  obligation,  al¬ 
though  it  may  not  do  so,  to  the  same  extent,  in  all  the  sup¬ 
posed  cases.  Any  deviation  from  its  terms,  by  postpon¬ 
ing,  or  accelerating  the  period  of  performance,  which  it 
prescribes,  or  by  imposing  conditions  not  expressed  in  the 
contract,  or  by  dispensing  with  the  performance  of  those, 
which  are  a  part  of  the  contract,  however  minute,  or  ap¬ 
parently  immaterial  in  their  effects  upon  it,  impairs  its 
obligation.  A  fortiori ,  a  law,  which  makes  the  contract 
wholly  invalid,  or  extinguishes,  or  releases  it,  is  a  law 
impairing  it.  Nor  is  this  all.  Although  there  is  a  distinc¬ 
tion  between  the  obligation  of  a  contract,  and  a  remedy 
upon  it ;  yet  if  there  are  certain  remedies  existing  at  the 
time,  when  it  is  made,  all  of  which  are  afterwards  wholly 
extinguished  by  new  laws,  so  that  there  remain  no  means 
of  enforcing  its  obligation,  and  no  redress  for  its  violation  ; 
such  an  abolition  of  all  remedies,  operating  immediate¬ 
ly,  is  also  an  impairing  of  the  obligation  of  such  contract. 
But  every  change  and  modification  of  the  remedy  does 
not  involve  such  a  consequence.  No  one  will  doubt,  that 
the  Legislature  may  vary  the  nature  and  extent  of  reme- 


PROHIBITIONS  ON  THE  STATES. 


155 


dies,  so  always,  that  some  substantive  remedy  be  in  fact 
left.  Nor  can  it  be  doubted,  that  the  Legislature  may  pre¬ 
scribe  the  times  and  modes,  in  which  remedies  may  be 
pursued  ;  and  bar  suits,  not  brought  within  such  periods, 
and  not  pursued  in  such  modes.  Statutes  of  limitations 
are  of  this  nature  ;  and  have  never  been  supposed  to  de¬ 
stroy  the  obligation  of  contracts,  but  to  prescribe  the 
times,  within  which  that  obligation  shall  be  enforced  by  a 
suit  ;  and  in  default  thereof,  to  deem  it  either  satisfied,  or 
abandoned.  The  obligation  to  perform  a  contract  is  co¬ 
eval  with  the  undertaking  to  perform  it.  It  originates 
with  the  contract  itself,  and  operates  anterior  to  the  time 
of  performance.  The  remedy  acts  upon  the  broken  con¬ 
tract,  and  enforces  a  preexisting  obligation.  And  a 
State  Legislature  may  discharge  a  party  from  imprison¬ 
ment  upon  a  judgement  in  a  civil  case  of  contract,  without 
infringing  the  Constitution  ;  for  this  is  but  a  modification 
of  the  remedy,  and  does  not  impair  the  obligation  of  the 
contract.  So,  if  a  party  should  be  in  jail,  and  give  a 
bond  for  the  prison  liberties,  and  to  remain  a  true  prison¬ 
er,  until  lawfully  discharged,  a  subsequent  discharge  by 
an  act  of  the  Legislature  would  not  impair  the  contract  ; 
for  it  would  be  a  lawful  discharge  in  the  sense  of  the  bond. 

§245.  These  general  considerations  naturally  conduct 
us  to  some  more  difficult  inquiries  growing  out  of  them  ; 
and  upon  which  there  has  been  a  very  great  diversity  of 
judicial  opinion.  The  great  object  of  the  framers  of 
the  Constitution  undoubtedly  was,  to  secure  the  inviola¬ 
bility  of  contracts.  This  principle  was  to  be  protected 
in  whatever  form  it  might  be  assailed.  No  enumeration 
was  attempted  to  be  made  of  the  modes,  by  which  con¬ 
tracts  might  be  impaired.  It  would  have  been  unwise  to 
have  made  such  an  enumeration,  since  it  might  have  been 
defective  ;  and  the  intention  was  to  prohibit  every  mode  or 
device  for  such  purpose.  The  prohibition  wras  universal. 

§  246.  The  question  has  arisen,  and  has  been  most 
elaborately  discussed,  how  far  the  States  may  constitution¬ 
ally  pass  an  insolvent  law,  which  shall  discharge  the  obli¬ 
gation  of  contracts.  It  is  hot  doubted,  that  the  States 
may  pass  insolvent  laws,  which  shall  discharge  the  per- 


156  CONSTITUTION  OF  THE  UNITED  STATES. 

son,  or  operate  in  the  nature  of  a  cessio  honor  urn ,  or  a 
surrender  of  all  the  debtor’s  property,  provided  such  laws 
do  not  discharge,  or  intermeddle  with,  the  obligation  of 
contracts.  Nor  is  it  denied,  that  insolvent  laws,  which 
discharge  the  obligation  of  contracts,  made  antecedently 
to  their  passage,  are  unconstitutional.  But  the  question 
is,  how  far  the  States  may  constitutionally  pass  insolvent 
laws,  which  shall  operate  upon,  and  discharge  contracts, 
which  are  made  subsequently  to  their  passage.  After  the 
most  ample  argument,  it  has  at  length  been  settled,  by 
a  majority  of  the  Supreme  Court,  that  the  States  may 
constitutionally  pass  such  laws  operating  upon  future  con¬ 
tracts,  although  not  upon  past. 

§  247.  The  remaining  prohibition  is,  to  u  grant  any  title 
of  nobility,”  which  is  supported  by  the  same  reasoning  as 
that  already  suggested,  in  considering  the  like  prohibition 
upon  the  National  Government. 

§  248.  The  next  clause,  omitting  the  prohibition  (al¬ 
ready  cited)  to  lay  any  imposts  or  duties  on  imports  or 
exports,  is,  uNo  State  shall,  without  the  consent  of  Con¬ 
gress,  lay  any  duty  on  tonnage  ;  keep  troops,  or  ships  of 
war,  in  time  of  peace  ;  enter  into  any  agreement  or  com¬ 
pact  with  another  State,  or  with  a  foreign  power  ;  or 
engage  in  war  unless  actually  invaded,  or  in  such  immi¬ 
nent  danger,  as  will  not  admit  of  delay.”  That  part, 
which  respects  tonnage  duties,  has  been  already  consid¬ 
ered.  The  other  parts  have  the  same  general  policy  in 
view,  which  dictated  the  preceding  restraints  upon  State 
power.  To  allow  the  States  to  keep  troops,  or  ships 
of  war,  in  time  of  peace,  might  be  hazardous  to  the  pub¬ 
lic  peace  or  safety,  or  compel  the  National  Government 
to  keep  up  an  expensive  corresponding  force.  To  allow 
the  States  to  enter  into  agreements  with  each  other,  or 
with  foreign  nations,  might  lead  to  mischievous  combina¬ 
tions,  injurious  to  the  general  interests,  and  bind  them 
into  confederacies  of  a  geographical  or  sectional  charac¬ 
ter.  To  allow  the  States  to  engage  in  war,  unless  com¬ 
pelled  so  to  do  in  self-defence  and  upon  sudden  emergen¬ 
cies,  would  be  (as  has  been  already  stated)  to  put  the 
peace  and  safety  of  all  the  States  in  the  power  and  dis- 


PROHIBITIONS  ON  THE  STATES. 


157 


cretion  of  any  one  of  them.  But  an  absolute  prohibition 
of  all  these  powers  might,  in  certain  exigencies,  be  inex¬ 
pedient,  and  even  mischievous  ;  and,  therefore,  Congress 
may,  by  their  consent,  authorize  the  exercise  of  any  of 
them,  whenever,  in  their  judgement,  the  public  good  shall 
require  it. 

§  249.  We  have  thus  passed  through  the  positive 
prohibitions  introduced  upon  the  powers  of  the  States. 
It  will  be  observed,  that  they  divide  themselves  into  twTo 
classes  ;  those,  which  are  political  in  their  character,  as 
an  exercise  of  sovereignty  ;  and  those,  w7hich  more  espe¬ 
cially  regard  the  private  rights  of  individuals.  In  the 
latter,  the  prohibition  is  absolute  and  universal.  In  the 
former,  it  is  sometimes  absolute,  and  sometimes  subjected 
to  the  consent  of  Congress.  It  will,  at  once,  be  per¬ 
ceived,  how  full  of  difficulty  and  delicacy  the  task  was,  to 
reconcile  the  jealous  tenacity  of  the  States  over  their  own 
sovereignty,  with  the  permanent  security  of  the  National 
Government,  and  the  inviolability  of  private  rights.  The 
task  has  been  accomplished  with  eminent  success.  If 
every  thing  has  not  been  accomplished,  which  a  wise 
forecast  might  have  deemed  proper  for  the  preservation 
of  our  national  rights  and  liberties  in  all  political  events, 
much  has  been  done  to  guard  us  against  the  most  obvious 
evils,  and  to  secure  a  wholesome  administration  of  private 
justice.  To  have  attempted  more,  would  probably  have 
endangered  the  whole  fabric  ;  and  thus  might  have  per¬ 
petuated  the  dominion  of  misrule  and  imbecility. 

§  250.  It  has  been  already  seen,  and  it  will  hereafter 
more  fully  appear,  that  there  are  implied,  as  well  as  ex¬ 
press,  prohibitions  in  the  Constitution  upon  the  power  of 
the  States.  Among  the  former,  one  clearly  is,  that  no 
State  can  control,  or  abridge,  or  interfere  with  the  exer¬ 
cise  of  any  authority  under  the  National  Government. 
And  it  may  be  added,  that  State  laws,  as,  for  instance, 
State  statutes  of  limitations,  and  State  insolvent  laws, 
have  no  operation  upon  the  rights  or  contracts  of  the 
United  States. 

§  251.  And  here  end  our  commentaries  upon  the  first 
article  of  the  Constitution,  embracing  the  organization 

14  xiii. 


158  CONSTITUTION  OF  THE  UNITED  STATES. 

and  powers  of  the  Legislative  department  of  the  govern¬ 
ment,  and  the  prohibitions  upon  the  State  and  National 
Governments.  If  we  here  pause,  but  for  a  moment,  we 
cannot  but  be  struck  with  the  reflection,  how  admirably  this 
division  and  distribution  of  legislative  powers  between  the 
State  and  National  Governments  is  adapted  to  preserve 
of  the  liberty,  and  to  promote  the  happiness  of  the  people 
of  the  United  States.  To  the  General  Government  are 
assigned  all  those  powers,  which  relate  to  the  common 
interests  of  all  the  States,  as  comprising  one  confederated 
nation  ;  while  to  each  State  is  reserved  all  those  pow¬ 
ers,  which  may  affect,  or  promote  its  own  domestic  in¬ 
terests,  its  peace,  its  prosperity,  its  policy,  and  its  local 
institutions.  At  the  same  time,  such  limitations  and  re¬ 
straints  are  imposed  upon  each  government,  as  experience 
has  demonstrated  to  be  wise  to  control  any  public  func¬ 
tionaries,  or  as  are  indispensable  to  secure  the  harmonious 
operations  of  the  Union. 

4l 


CHAPTER  XXVIII. 

The  Executive  Department. 

§  252.  W e  next  come  to  the  second  article  of  the 
Constitution,  which  prescribes  the  structure,  organization, 
and  powers  of  the  Executive  department.  What  is  the 
best  constitution  for  the  executive  department,  and  what 
are  the  powers,  with  which  it  should  be  intrusted,  are 
problems  among  the  most  important,  and  probably  the 
most  difficult  to  be  satisfactorily  solved,  of  all,  which  are 
involved  in  the  theory  of  free  governments.  No  man, 
who  has  ever  studied  the  subject  with  profound  attention, 
has  risen  from  the  labor  without  an  increased  and  almost 
overwhelming  sense  of  its  intricate  relations,  and  perplex¬ 
ing  doubts.  No  man,  who  has  ever  deeply  read  the 
human  history,  and  especially  the  history  of  republics, 
but  has  been  struck  with  the  consciousness,  how  little  has 
been  hitherto  done  to  establish  a  sate  depositary  of  power 


EXECUTIVE  DEPARTMENT. 


159 


in  any  hands  ;  and  how  often,  in  the  hands  of  one,  or  a 
few,  or  many, — of  an  hereditary  monarch,  or  an  elective 
chief,  or  a  national  council,  the  executive  power  has 
brought  ruin  upon  the  state,  or  sunk  under  the  oppressive 
burden  of  its  own  imbecility.  Perhaps  our  own  history 
has  not,  as  yet,  established,  that  we  shall  wholly  escape 
all  the  dangers  ;  and  that  here  will  not  be  found,  as  has 
been  the  case  in  other  nations,  the  vulnerable  part  of  the 
republic. 

§  253.  The  first  clause  of  the  first  section  is,  u  The 
executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall  hold  his  office 
during  the  term  of  four  years  ;  and,  together  with  the  Vice 
President,  chosen  for  the  same  term,  be  elected  as  fol¬ 
lows.” 

§  254.  In  considering  this  clause,  three  practical  ques¬ 
tions  may  arise  ;  (1)  whether  there  should  be  any  execu¬ 
tive  department ;  (2)  whether  it  should  be  composed  of 
more  than  one  person  ;  (3)  and  what  should  be  the  dura¬ 
tion  of  the  term  of  office.  Upon  the  first  question,  little 
need  now  be  said,  to  establish  the  propriety  of  an  execu¬ 
tive  department.  It  is  founded  upon  a  maxim  admitted 
in  all  our  State  Constitutions,  that  the  legislative,  execu¬ 
tive,  and  judicial  departments  ought  to  be  kept  separate, 
and  the  power  of  one  ought  not  to  be  exercised  by  either 
of  the  others.  The  want  of  an  executive  department 
was  felt,  as  a  great  defect  under  the  Confederation. 

§  255.  In  the  next  place,  in  what  manner  should  the 
executive  department  be  organized  ?  It  may,  in  general 
terms,  be  answered, — In  such  a  manner  as  best  to  secure 
energy  in  the  Executive,  and  safety  to  the  people.  A 
feeble  Executive  implies  a  feeble  execution  of  the  gov¬ 
ernment  ;  and  a  feeble  execution  is  but  another  phrase 
fora  bad  execution.  Unity  in  the  Executive  is  favorable 
to  energy,  promptitude,  and  responsibility.  A  division 
of  the  power  among  several  persons  impairs  each  of  these 
qualities  ;  and  introduces  discord,  intrigue,  dilatoriness, 
and,  not  unfrequently,  personal  rivalries,  incompatible  with 
the  public  good.  On  the  other  hand,  a  single  Executive 
is  quite  as  safe  for  the  people.  His  responsibility  is  more 


160  CONSTITUTION  OF  THE  UNITED  STATES. 

direct  and  efficient,  as  his  measures  cannot  be  disguised, 
or  shifted  upon  others  ;  and  any  abuse  of  authority  can 
be  more  clearly  seen,  and  carefully  watched,  than  when 
it  is  shared  by  numbers. 

§  256.  In  the  next  place,  the  duration  of  the  term  of 
office  of  the  Executive.  It  should  be  long  enough  to 
enable  a  chief  magistrate  to  carry  fairly  through  a  system 
of  government,  according  to  the  laws  ;  and  to  stimulate 
him  to  personal  firmness  in  the  execution  of  his  duties. 
If  the  term  is  very  short,  he  will  feel  very  little  of  the 
just  pride  of  office,  from  the  precariousness  of  its  tenure. 
He  will  act  more  with  reference  to  immediate  and  tem¬ 
porary  popularity,  than  to  permanent  fame.  His  meas¬ 
ures  will  tend  to  insure  his  own  reelection,  (if  he  desires 
it,)  rather  than  to  promote  the  good  of  the  country.  He 
will  bestow  offices  upon  mean  dependants,  or  fawning 
courtiers,  rather  than  upon  persons  of  solid  honor  and 
distinction.  He  will  fear  to  encounter  opposition  by  a 
lofty  course  ;  and  his  wishes  for  office,  equally  with  his 
fears,  will  debase  his  fortitude,  weaken  his  integrity,  and 
enhance  his  irresolution. 

§  257.  On  the  other  hand,  the  period  should  not  be  so 
long,  as  to  impair  the  proper  dependence  of  the  Execu¬ 
tive  upon  the  people  for  encouragement  and  support  ;  or 
to  enable  him  to  persist  in  a  course  of  measures,  deeply 
injurious  to  the  public  interests,  or  subversive  of  the  pub¬ 
lic  faith.  His  administration  should  be  known  to  come 
under  the  review  of  the  people  at  short  periods  ;  so  that 
its  merits  may  be  decided,  and  its  errors  be  corrected  by 
the  sober  exercise  of  the  electoral  vote  by  the  people. 

§  25S.  For  all  of  these  purposes,  the  period,  actually 
assigned  for  the  duration  of  office  of  the  President,  by  the 
Constitution,  seems  adequate  and  satisfactory.  It  is  four 
years,  a  period  intermediate  between  the  term  of  office 
of  the  Representatives,  and  that  of  the  Senators.  By 
this  arrangement,  too,  the  whole  organization  of  the  legis¬ 
lative  departments  is  not  dissolved  at  the  same  moment. 
A  part  of  the  functionaries  are  constantly  going  out  of 
office,  and  as  constantly  renewed,  while  a  sufficient  num¬ 
ber  remain,  to  carry  on  the  same  general  system  with  in- 


EXECUTIVE  DEPARTMENT. 


161 


telligence  and  steadiness.  The  President  is  not  precluded 
from  being  reeligible  to  office  ;  and  thus  with  a  just 
estimate  of  the  true  dignity  and  true  duties  of  his  office, 
he  may  confer  lasting  benefits  on  his  country,  as  well 
as  acquire  for  himself  the  enviable  fame  of  a  statesman 
and  patriot. 

§  259.  The  like  term  of  office  is  fixed  for  the  Vice 
President  ;  and  in  case  of  the  vacancy  of  the  office  of 
President,  he  is  to  succeed  to  the  same  duties  and  pow¬ 
ers.  In  the  original  scheme  of  the  government,  the  Vice 
President  was  an  equal  candidate  for  the  office  of  Presi¬ 
dent.  But  that  provision  has  been  altered  (as  we  shall 
presently  see)  by  an  amendment  of  the  Constitution.  As 
President  of  the  Senate,  it  seems  desirable,  that  the  Vice 
President  should  have  the  experience  of  at  least  four 
years  service,  to  perfect  him  in  the  forms  of  business, 
and  secure  to  him  due  distinction,  and  weight  of  charac¬ 
ter. 

§  260.  The  next  clause  provides  for  the  mode  of 
choice  of  the  President  and  Vice  President.  u  Each 
State  shall  appoint,  in  such  manner  as  the  Legislature 
thereof  may  direct,  a  number  of  Electors,  equal  to  the 
whole  number  of  Senators  and  Representatives,  to  which 
the  State  may  be  entitled  in  the  Congress.  But  no  Sen¬ 
ator  or  Representative,  or  person  holding  an  office  of 
trust  or  profit  under  the  United  States,  shall  be  appointed 
an  Elector.” 

§  261 .  Various  modes  were  suggested  as  to  the  choice 
of  these  high  officers  ;  first,  the  choice  was  proposed  to 
be  made  by  the  National  Legislature  ;  secondly,  by  the 
State  Legislatures  ;  thirdly,  by  the  people  at  large  ; 
fourthly,  by  the  people  in  districts  ;  and  lastly,  by  Elect¬ 
ors.  Upon  consideration  of  the  whole  subject,  the  last 
was  deemed  the  most  eligible  course,  as  it  would  secure 
the  united  action  and  wisdom  of  a  select  body  of  distin¬ 
guished  citizens  in  the  choice,  and  would  be  attended 
with  less  excitement,  and  more  deliberation,  than  a  mere 
popular  election.  Such  a  body  would  also  have  this 
preference  over  any  mere  Legislature,  that  it  would  not  be 
chosen  for  the  ordinary  functions  of  legislation,  but  singly 

14* 


162  CONSTITUTION  OF  THE  UNITED  STATES. 

and  solely  for  this  duty.  It  was  supposed  from  these 
circumstances,  that  the  choice  would  be  more  free  and 
independent,  more  wise  and  cautious,  more  satisfactory, 
and  more  unbiased  by  party  spirit,  than  in  either  of  the 
other  modes.  The  State  Legislatures  would  still  have 
an  agency  in  the  choice,  by  prescribing  the  mode,  in 
which  the  Electors  should  be  chosen,  whether  it  should 
be  by  the  people  at  large,  or  in  districts,  or  by  the  Legis¬ 
lature  itself.  For  the  purpose  of  excluding  all  undue 
influence  in  the  electoral  colleges,  the  Senators  and 
Representatives  in  Congress,  and  all  officers  under  the 
National  Government  are  disqualified  from  being  Electors. 

§  262.  The  remaining  clause  regulates  the  conduct  of 
the  Electors,  in  giving  and  certifying  their  votes  ;  the 
manner  of  ascertaining  and  counting  the  votes  in  Congress  ; 
and  the  mode  of  choice,  in  case  there  is  no  choice  made 
by  the  Electors.  The  original  clause  was  as  follows  : — 
tc  The  Electors  shall  meet  in  their  respective  States,  and 
vote  by  ballot  for  two  persons,  of  whom  one,  at  least,  shall 
not  be  an  inhabitant  of  the  same  State  with  themselves. 
And  they  shall  make  a  list  of  all  the  persons  voted  for, 
and  of  the  number  of  votes  for  each  ;  which  list  they  shall 
sign  and  certify,  and  transmit,  sealed,  to  the  seat  of  the 
government  of  the  United  States,  directed  to  the  Presi¬ 
dent  of  the  Senate.  The  President  of  the  Senate  shall, 
in  the  presence  of  the  Senate  and  House  of  Representa¬ 
tives,  open  all  the  certificates,  and  the  votes  shall  then  be 
counted.  The  person  having  the  greatest  number  of 
votes  shall  be  the  President,  if  such  number  be  a  majori¬ 
ty  of  the  whole  number  of  electors  appointed  ;  and  if 
there  be  more  than  one  who  have  such  majority,  and  have 
an  equal  number  of  votes,  then  the  House  of  Representa¬ 
tives  shall  immediately  choose  by  ballot  one  of  them  for 
President  ;  and  if  no  person  have  a  majority,  then,  from 
the  five  highest  on  the  list,  the  said  House  shall  in  like 
manner  choose  the  President.  But  in  choosing  the  Presi¬ 
dent  the  votes  shall  be  taken  by  States,  the  representation 
from  each  State  having  one  vote  ;  a  quorum  for  this  pur¬ 
pose  shall  consist  of  a  member  or  members  from  two 
thirds  of  the  States,  and  a  majority  of  all  the  States  shall 


EXECUTIVE  DEPARTMENT. 


163 


be  necessary  to  a  choice.  In  every  case,  after  the  choice 
of  the  President,  the  person  having  the  greatest  number 
of  votes  of  the  Electors  shall  be  the  Vice  President.  But 
if  there  should  remain  two  or  more  who  have  equal  votes, 
the  Senate  shall  choose  from  them  by  ballot  the  Vice  Pres¬ 
ident.” 

§  263.  This  clause  is  now  repealed,  (whether  wisely  or 
not,  has  been  a  matter  of  grave  question  among  statesmen,) 
and  the  following  substituted  in  its  stead  : — u  The  Elec¬ 
tors  shall  meet  in  their  respective  States,  and  vote  by 
ballot  for  President  and  Vic£  President,  one  of  whom,  at 
least,  shall  not  be  an  inhabitant  of  the  same  State  with 
themselves.  They  shall  name  in  their  ballots  the  per¬ 
son  voted  for  as  President,  and  in  distinct  ballots  the 
person  voted  for  as  Vice  President.  And  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice  President,  and  of  the 
number  of  votes  for  each  ;  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  government  of 
the  United  States,  directed  to  the  President  of  the  Sen¬ 
ate.  The  President  of  the  Senate  shall,  in  presence  of 
the  Senate  and  House  of  Representatives,  open  all  the 
certificates  ;  and  the  votes  shall  then  be  counted.  The 
person,  having  the  greatest  number  of  votes  for  President, 
shall  be  the  President,  if  such  number  be  a  majority  of 
the  whole  number  of  Electors  appointed  ;  and  if  no  per¬ 
son  have  such  majority,  then,  from  the  persons  having  the 
highest  numbers,  not  exceeding  three,  on  the  list  of  those 
voted  for  as  President,  the  House  of  Representatives  shall 
choose  immediately,  by  ballot,  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by  States, 
the  Representation  from  each  State  having  one  vote  ;  a 
quorum  for  this  purpose  shall  consist  of  a  member  or 
members  from  two  thirds  of  the  States  ;  and  a  majority 
of  all  the  States  shall  be  necessary  to  a  choice.  And 
if  the  House  of  Representatives  shall  not  choose  a  Pres¬ 
ident,  whenever  the  right  of  choice  shall  devolve  upon 
them,  before  the  fourth  day  of  March  next  following,  then 
the  Vice  President  shall  act  as  President,  as  in  the  case 
of  the  death,  or  other  constitutional  disability  of  the 


164  CONSTITUTION  OF  TIIE  UNITED  STATES. 

President.  The  person,  having  the  greatest  number  of 
votes  as  Vice  President,  shall  be  the  Vice  President,  if 
such  number  be  a  majority  of  the  whole  number  of  Elect¬ 
ors  appointed.  And  if  no  person  have  a  majority,  then, 
from  the  two  highest  numbers  on  the  list,  the  Senate  shall 
choose  the  Vice  President.  A  quorum  for  the  purpose 
shall  consist  of  two  thirds  of  the  whole  number  of  Sena¬ 
tors,  and  a  majority  of  the  whole  number  shall  be  neces¬ 
sary  to  a  choice.  But  no  person,  constitutionally  ineligi¬ 
ble  to  the  office  of  President,  shall  be  eligible  to  that  of 
Vice  President  of  the  United  States.” 

§  26-4.  The  principal  differences  between  the  original 
plan,  and  this  amendment  to  the  Constitution,  are  the  fol¬ 
lowing  :  First,  by  the  original  plan,  two  persons  were  voted 
for  as  President  ;  and  after  the  President  was  chosen,  the 
person,  having  the  greatest  number  of  votes  of  the  Elect¬ 
ors  was  to  be  Vice  President  ;  but  if  two  or  more  had 
equal  votes,  the  Senate  were  to  choose  the  Vice  Presi¬ 
dent  from  them  by  ballot.  By  the  present  plan,  the  votes 
for  President  and  Vice  President  are  distinct.  Second¬ 
ly,  by  the  original  plan,  in  case  of  no  choice  of  President 
by  the  Electors,  the  .choice  was  to  be  made  by  the  House 
of  Representatives,  from  the  five  highest  on  the  list.  It 
is  now  reduced  to  three.  Thirdly,  by  the  original  plan, 
the  Vice  President  need  not  have  a  majority  of  all  the 
electoral  votes,  but  only  a  greater  number  than  any  other 
person.  It  is  now  necessary,  that  he  should  have  a  ma¬ 
jority  of  all  the  votes.  Fourthly,  by  the  original  plan, 
the  choice  of  Vice  President  could  not  be  made  until  af¬ 
ter  a  choice  of  President.  It  can  now  be  made  by  the 
Senate,  as  soon  as  it  is  ascertained,  that  there  is  no  choice 
by  the  Electors.  Fifthly,  no  provision  was  made  for  the 
case  of  no  choice  of  President  by  the  House  of  Represent¬ 
atives,  before  the  fourth  day  of  March  next.  It  is  now 
provided  that  the  Vice  President  in  such  a  case  shall  act 
as  President. 

§  265.  A  few  words,  only,  will  be  necessary,  to  explain 
the  main  provisions,  respecting  the  choice  of  these  high 
functionaries,  since  the  adoption  of  this  amendment,  as  an 
elaborate  examination  of  the  subject  would  occupy  too 


EXECUTIVE  DEPARTMENT. 


165 


much  space.  In  the  first  place,  the  Electors,  as  well  as 
the  House  of  Representatives,  are  to  vote  by  ballot,  and 
not  viva  voce ,  or  by  oral  declaration.  The  object  of  this 
provision,  is,  to  secure  the  Electors  from  all  undue  influ¬ 
ence,  and  undue  odium  for  their  vote,  as  it  was  supposed, 
that  perfect  secrecy  could  be  maintained.  In  the  next 
place,  both  candidates  cannot  be  an  inhabitant  of  the  same 
State,  as  the  Electors.  The  object  of  this  clause  is  to 
suppress  local  partialities  and  combinations.  In  the  next 
place,  the  votes  are  to  be  certified  by  the  Electors  them¬ 
selves,  in  order  to  insure  the  genuineness  of  the  vouchers. 
In  the  next  place,  they  are  to  be  sealed,  and  opened  and 
counted  only  in  presence  of  the  Senate  and  House  of 
Representatives,  in  order  to  prevent  any  frauds  or  altera¬ 
tions  in  their  transmission.  In  the  next  place,  a  majority 
of  all  the  electoral  votes  is,  in  the  first  instance,  required 
for  a  choice,  and  not  a  mere  plurality  ;  thus  enabling  thes 
people,  in  case  there  is  no  choice,  to  exercise  through 
their  Representatives  a  sound  discretion,  in  selecting  from 
the  three  highest  candidates.  It  might  otherwise  happen, 
if  there  were  many  candidates,  that  a  person,  having  a 
very  small  number  of  votes  over  any  one  of  the  others, 
might  succeed  against  the  wishes  of  a  great  majority  of 
the  people.  In  the  next  place,  the  House  of  Represent¬ 
atives  are  to  vote  by  States,  each  having  one  vote  in  the 
choice.  The  choice  is,  as  we  have  seen,  in  the  first  in¬ 
stance  to  be  by  the  people  of  each  State,  according  to 
the  number  of  their  Senators  and  Representatives.  But 
if  no  choice  is  thus  made,  then  the  choice  devolves  on 
the  House  of  Representatives,  and  each  State  is  to  have 
an  equal  voice  in  the  election,  and  to  have  but  a  single 
vote,  whatever  may  be  the  number  of  its  Representatives. 
Thus,  the  primary  election  is  in  effect  surrendered  to  the 
large  States  ;  and  if  that  fails,  then  it  is  surrendered  to 
the  small  States.  So  that  an  important  motive  is  thus 
suggested  for  union  among  the  large  States  in  the  first 
instance  ;  and  for  union  among  the  small  States  in  the 
last  resort. 

§  266.  There  probably  is  no  part  of  the  plan  of  the 
framers  of  the  Constitution,  which,  practically  speaking, 


166  CONSTITUTION  OF  THE  UNITED  STATES. 

has  so  little  realized  the  expectations  of  its  friends,  as  that 
which  regards  the  choice  of  President.  They  undoubt¬ 
edly  intended,  that  the  Electors  should  be  left  free  to  make 
the  choice  according  to  their  own  judgement  of  the  rel¬ 
ative  merits  and  qualifications  of  the  candidates  for  this 
high  office  ;  and  that  they  should  be  under  no  pledge  to 
any  popular  favorite,  and  should  be  guided  by  no  sectional 
influences.  In  both  respects,  the  event  has  disappointed 
all  these  expectations.  The  Electors  are  now  almost  uni¬ 
versally  pledged  to  support  a  particular  candidate,  before 
they  receive  their  own  appointment  ;  and  they  do  little 
more  than  register  the  previous  decrees,  made  by  public 
and  private  meetings  of  the  citizens  of  their  own  State. 
The  President  is  in  no  just  sense  the  unbiassed  choice  of 
the  people,  or  of  the  States.  He  is  commonly  the  rep¬ 
resentative  of  a  party,  and  not  of  the  Union  ;  and  the  dan¬ 
ger,  therefore,  is,  that  the  office  may  hereafter  be  filled  by 
those,  who  will  gratify  the  private  resentments,  or  preju¬ 
dices,  or  selfish  objects  of  their  particular  partisans,  rather 
than  by  those,  who  will  study  to  fulfil  the  high  destiny 
contemplated  by  the  Constitution,  and  be  the  impartial 
patrons,  supporters,  and  friends  of  the  great  interests  of  the 
'  whole  country. 

§  267.  It  is  observable,  that  the  mode,  in  which  the 
electoral  vote  of  each  State  is  to  be  given,  is  confided  to 
the  State  Legislature.  The  mode  of  choice  has  never 
been  uniform  since  the  Constitution  was  adopted.  In 
some  States,  the  choice  is  by  the  people  by  a  general 
ticket  ;  in  others,  by  the  people  in  electoral  districts  ; 
and  in  others,  by  the  immediate  choice  of  the  State  Le¬ 
gislature.  This  want  of  uniformity  has  been  deemed  a 
serious  defect  by  many  statesmen  ;  but,  hitherto,  it  has 
remained  unredressed  by  any  constitutional  amendment. 

§  26S.  The  next  clause  is,  u  The  Congress  may  de¬ 
termine  the  time  of  choosing  the  Electors,  and  the  day, 
on  which  they  shall  give  their  votes  ;  which  day  shall  be 
the  same  throughout  the  United  States.”  This  measure 
is  undoubtedly  the  result  of  sound  policy.  A  fixed  peri¬ 
od,  at  which  all  the  electoral  votes  shall  be  given  on  the 
same  day,  has  a  tendency  to  repress  political  intrigues  and 


EXECUTIVE  DEPARTMENT. 


167 


speculations,  by  rendering  a  combination  among  all  the 
electoral  colleges,  as  to  their  votes,  more  difficult,  if  not 
unavailing.  This  object  would  be  still  more  certainly 
obtained,  by  fixing  the  choice  of  the  electors  themselves 
on  the  same  day,  and  at  so  short  a  period,  before  they 
gave  their  votes,  as  to  render  any  general  negotiations  and 
arrangements  among  them  nearly  impracticable.  Prac¬ 
tically  speaking,  however,  this  provision,  as  well  as  the 
preceding,  has  had  far  less  influence  than  was  expected  ; 
for  the  votes  of  the  Electors  are  now,  in  consequence  of 
their  pledges,  almost  as  well  known  before,  as  after,  their 
votes  are  counted. 

§  269.  The  next  clause  respects  the  qualifications  of  the 
President  ;  and  the  qualifications  of  the  Vice  President 
are  (as  we  have  seen)  to  be  the  same.  u  No  person 
except  a  natural  born  citizen,  or  a  citizen  of  the  United 
States  at  the  time  of  the  adoption  of  this  Constitution,  shall 
be  eligible  to  the  office  of  President.  Neither  shall  any 
person  be  eligible  to  the  office,  who  shall  not  have  attained 
to  the  age  of  thirty-five  years,  and  been  fourteen  years  a 
resident  within  the  United  States.” 

§  270.  Considering  the  nature  of  the  duties,  the  extent 
of  the  information,  and  the  solid  wisdom  and  experience, 
required  in  the  Executive  department,  no  one  can  reason¬ 
ably  doubt  the  propriety  of  some  qualification  of  age  of  the 
President.  That,  which  is  selected,  is  the  middle  age  of 
life,  by  which  period,  the  character  and  talents  of  individ¬ 
uals  are  generally  known,  and  fairly  developed  ;  the  pas¬ 
sions  of  youth  have  become  moderated  ;  and  the  faculties 
are  fast  advancing  to  their  highest  state  of  maturity.  An 
earlier  period  could  scarcely  have  afforded  sufficient  pledg¬ 
es  of  talents,  wisdom,  and  virtue,  adequate  to  the  dignity 
and  importance  of  the  office. 

§  271.  The  other  qualifications  respect  citizenship  and 
inhabitancy.  It  is  not  too  much  to  say,  that  no  one,  but 
a  native  citizen,  ought  ordinarily  to  be  intrusted  with  an 
office  so  vital  to  the  safety  and  liberties  of  the  people. 
But  an  exception  was,  from  a  deep  sense  of  gratitude, 
made  in  favor  of  those  distinguished  men,  who,  though  not 
natives,  had,  with  such  exalted  patriotism,  and  such  per- 


16S  CONSTITUTION  OF  THE  UNITED  STATES. 

sonal  sacrifices,  united  their  lives  and  fortunes  with  ours 
during  the  Revolution.  But  even  a  native  citizen  might, 
from  long  absence,  and  voluntary  residence  abroad,  be¬ 
come  alienated  from,  or  indifferent  to  his  country  ;  and, 
therefore,  a  residence  for  fourteen  years  within  the  United 
States  is  made  indispensable,  as  a  qualification  to  the 
office.  This,  of  course,  does  not  exclude  persons,  who 
are  temporarily  abroad  in  the  public  service,  or  on  their 
private  affairs,  and  who  have  not  intentionally  given  up 
their  domicile  here. 

§272.  The  next  clause  is,  “  In  case  of  the  removal 
of  the  President  from  office,  or  of  his  death,  resignation, 
or  inability  to  discharge  the  powers  and  duties  of  the  said 
office,  the  same  shall  devolve  on  the  Vice  President. 
And  the  Congress  may  by  law  provide  for  the  case  of 
removal,  death,  resignation,  or  inability  of  the  President 
and  Vice  President  ;  declaring  what  officer  shall  then  act 
as  President  ;  and  such  officer  shall  act  accordingly,  until 
the  disability  be  removed,  or  a  President  shall  be  elect¬ 
ed.”  The  propriety  of  this  power  is  manifest.  It  pro¬ 
vides  for  cases,  which  may  occur  in  the  progress  of  the 
government  ;  and  it  prevents  in  such  cases  a  total  sus¬ 
pension  of  the  executive  functions,  which  would  be  in¬ 
jurious,  and  might  even  be  fatal  to  the  interests  of  the 
country. 

§  273.  What  shall  be  the  proper  proof  of  the  resigna¬ 
tion  of  the  President  or  Vice  President,  or  of  their  refu¬ 
sal  to  accept  the  office,  is  left  open  by  the  Constitution. 
But  Congress,  with  great  wisdom  and  foresight,  have  pro¬ 
vided,  that  the  only  evidence  of  a  refusal  to  accept  the 
office,  or  of  a  resignation  of  the  office,  shall  be  an  instru¬ 
ment  in  writing,  declaring  the  same,  subscribed  by  the 
party  and  delivered  into  the  office  of  the  Secretary  of 
State.  No  provision  has  as  yet  been  made  for  the  case 
of  the  inability  of  the  President  or  Vice  President  to 
perform  the  duties  of  his  office,  nor  has  any  mode  of 
proof  been  prescribed,  to  ascertain  the  fact  of  inability, 
or  what  shall  be  deemed  an  inability. 

§  274.  The  next  clause  provides  for  the  compensation 
of  the  President.  u  The  President  shall,  at  stated  times, 


EXECUTIVE  DEPARTMENT. 


169 


receive  for  his  services  a  compensation,  which  shall  nei¬ 
ther  be  increased  nor  diminished,  during  the  period  for 
which  he  shall  have  been  elected  ;  and  he  shall  not  receive, 
within  that  period,  any  other  emolument  from  the  United 
States,  or  any  of  them.  ” 

§275.  The  propriety  of  granting  to  the  President  a 
suitable  compensation,  cannot  well  be  doubted.  The  Con¬ 
stitution  would,  otherwise,  exclude  all  persons  of  moder¬ 
ate  fortune  from  the  office  ;  or  expose  them  to  gross 
temptations,  to  sacrifices  of  duty,  and  perhaps  to  direct 
corruption.  The  compensation  should  be  adequate  to 
the  just  expenditures  of  the  office.  If  the  Legislature 
should  possess  a  discretionary  authority  to  increase  or 
diminish  it  at  their  pleasure,  the  President  would  become 
an  humble  dependent  upon  their  bounty,  or  a  mean  sup¬ 
pliant  for  their  favor.  It  would  give  them  a  complete 
command  of  his  independence,  and  perhaps  of  his  integ¬ 
rity.  And  on  the  other  hand,  if  the  actual  incumbent 
could  procure  an  augmentation  of  it  during  his  official 
term  to  any  extent  he  might  desire,  he  might  be  induced, 
from  mere  avarice,  to  seek  this  as  his  highest  reward,  and 
undermine  the  virtue  of  Congress,  in  order  to  accomplish 
it.  The  prohibition  equally  forbids  any  increase  or  dimi¬ 
nution.  And,  to  exclude  all  exterior  influences,  it  equal¬ 
ly  denies  to  him  all  emoluments  arising  from  any  other 
sources,  State  or  National.  He  is  thus  secured,  in  a  great 
measure,  against  all  sinister  foreign  influences.  And  he 
must  be  lost  to  all  just  sense  of  the  high  duties  of  his 
station,  if  he  does  not  conduct  himself  with  an  exclusive 
devotion  to  the  good  of  the  whole  people,  unmindful  at 
once  of  the  blandishments  of  courtiers,  who  seek  to 
deceive  him,  and  of  partisans,  who  aim  to  govern  him, 
and  thus  to  accomplish  their  own  selfish  purposes. 

§  276.  The  next  clause  is,  u  Before  he  enters  on 
the  execution  of  his  office,  he  shall  take  the  following 
oath  or  affirmation  :  I  do  solemnly  swear  (or  affirm)  that 
I  will  faithfully  execute  the  office  of  President  of  the 
United  States,  and  will,  to  the  best  of  my  ability,  pre¬ 
serve,  protect,  and  defend,  the  Constitution  of  the  United 
States.7’  There  is  little  need  of  commentary  here.  No 

15  xiii. 


170  CONSTITUTION  OF  THE  UNITED  STATES. 

man  can  doubt  the  propriety  of  placing  the  President 
under  the  sanction  of  an  oath  of  office,  to  preserve,  pro¬ 
tect,  and  defend,  the  Constitution,  who  would  require  an 
oath  or  solemn  affirmation  on  any  other  occasion.  If  a 
judge,  or  a  juryman,  or  a  witness,  ought  to  take  a  solemn 
oath  or  affirmation,  to  bind  his  conscience,  surely  a  Pres¬ 
ident,  holding  in  his  hands  the  destiny  of  the  nation,  ought 
so  to  do.  Let  it  not  be  deemed  a  vain  or  idle  form.  In 
all  these  things,  God  will  bring  us  into  judgement.  A 
President,  who  shall  dare  to  violate  the  obligations  of  his 
solemn  oath  or  affirmation  of  office,  may  escape  human 
censure,  nay,  may  even  receive  applause  from  the  giddy 
multitude.  But  he  will  be  compelled  to  learn,  that  there 
is  a  watchful  Providence,  that  cannot  be  deceived  ;  and 
a  righteous  Being,  the  searcher  of  all  hearts,  who  will 
render  unto  all  men  according  to  their  deserts.  Consid¬ 
erations  of  this  sort  will  necessarily  make  a  conscientious 
man  more  scrupulous  in  the  discharge  of  his  duty  ;  and 
will  even  make  a  man  of  looser  principles  pause,  when 
he  is  about  to  enter  upon  a  deliberate  violation  of  his 
official  oath. 


CHAPTER  XXIX. 

Powers  and  Duties  of  the  President. 

§  277 .  We  next  come  to  the  consideration  of  the  pow¬ 
ers  and  duties  of  the  President.  The  first  clause  of  the 
second  section  is,  cc  The  President  shall  be  commander- 
in-chief  of  the  army  and  navy  of  the  United  States,  and 
of  the  militia  of  the  several  States,  when  called  into  the 
actual  service  of  the  United  States.  He  may  require 
the  opinion  in  writing  of  the  principal  officer  in  each  of 
the  executive  departments,  upon  any  subject  relating  to 
the  duties  of  their  respective  offices  ;  and  he  shall  have 
power  to  grant  reprieves  and  pardons  for  offences  against 
the  United  States,  except  in  cases  of  impeachment.” 

§  278.  The  command,  direction,  and  application,  of 


POWERS  AND  DUTIES  OF  THE  PRESIDENT.  171 


the  public  forces,  to  execute  the  laws,  maintain  peace, 
resist  invasion,  and  carry  on  war,  are  powers  obviously 
belonging  to  the  executive  department,  and  require  the 
exercise  of  qualifications,  which  cannot  properly  be  pre¬ 
sumed  to  exist  in  any  other  department  of  the  govern¬ 
ment.  Promptitude  of  action,  unity  of  design,  and  har¬ 
mony  of  operations,  are  in  such  cases  indispensable  to 
success.  Timidity,  indecision,  obstinacy,  pride,  and  slug¬ 
gishness,  must  mingle,  in  a  greater  or  less  degree,  in  all 
numerous  bodies,  and  render  their  councils  inert  and  im¬ 
becile,  and  their  military  operations  slow  and  uncertain. 
There  is,  then,  true  wisdom  and  policy  in  confiding  the 
command  of  the  army  and  navy  to  the  President,  since  it 
will  insure  activity,  responsibility,  and  firmness,  in  public 
emergencies. 

§  279.  The  President  is  also  authorized  to  require 
the  opinions  of  the  Heads  of  Departments,  in  writing,  on 
subjects  relative  to  their  official  duties.  This,  perhaps, 
might  have  been  deemed  an  incidental  right  to  his  gener¬ 
al  authority.  But  it  was  desirable  to  make  it  a  matter  of 
constitutional  right,  so  as  to  enforce  responsibility  in  crit¬ 
ical  times. 

§  280.  To  the  President,  also,  is  confided  the  power 
“to  grant  reprieves  and  pardons.”  Without  this  power, 
no  government  could  be  deemed  to  be  suitably  organized 
for  the  purposes  of  administering  human  justice.  The 
criminal  code  of  every  country  must  necessarily  partake, 
in  some  of  its  punishments,  of  a  high  degree  of  severity  ; 
and  it  is  not  possible  to  fix  the  exact  degree  of  punish¬ 
ment,  for  every  kind  of  offence,  under  every  variety  of 
circumstances.  There  are  so  many  things,  which  may 
extenuate,  as  well  as  inflame  the  atrocity  of  crimes,  and 
so  many  infirmities,  which  belong  to  human  nature  in 
general,  which  may  furnish  excuses,  or  mitigations  for 
the  commission  of  them,  that  any  code,  which  did  not 
provide  for  any  pardoning  or  mitigating  power,  would  be 
universally  deemed  cruel,  unjust,  and  indefensible.  It 
would  introduce  the  very  evils,  which  it  would  seek  to 
avoid,  by  inducing  the  community  to  connive  at  an  escape 
from  punishment,  in  all  cases,  where  the  latter  would  be 


172  CONSTITUTION  OF  THE  UNITED  STATES. 

disproportionate  to  the  offence.  The  power  of  pardon 
and  reprieve  is  better  vested  in  a  single  person,  than  in  a 
numerous  body.  It  brings  home  a  closer  responsibility  ; 
it  can  be  more  promptly  applied  ;  and,  by  cutting  off  de- 
lavs,  it  will,  on  the  one  band,  conduce  to  certaintv  of 
punishment,  and,  on  the  other  hand,  enable  the  Execu¬ 
tive,  at  critical  moments,  to  apply  it  as  a  means  of  detect¬ 
ing,  or  of  suppressing  gross  offences.  But  if  the  power 
of  pardon  extended  to  impeachments,  it  is  obvious,  that 
the  latter  might  become  wholly  inefficient,  as  a  protection 
against  political  offences.  The  party  accused  might  be 
acting  under  the  authority  of  the  President,  or  be  one  of 
his  corrupt  favorites.  It  is,  therefore,  wisely  excepted 
from  his  general  authority. 

§  281.  The  next  clause  respects  the  power  to  make 
treaties  and  appointments  to  office.  tc  He  (the  Presi¬ 
dent)  shall  have  power,  by  and  with  the  advice  and  con¬ 
sent  of  the  Senate,  to  make  treaties,  provided  two  thirds 
of  the  Senators  present  concur.  And  he  shall  nominate, 
and,  by  and  with  the  advice  and  consent  of  the  Senate, 
shall  appoint,  ambassadors,  other  public  ministers  and 
consuls,  judges  of  the  Supreme  Court,  and  all  other  offi¬ 
cers  of  the  United  States,  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which  shall  be  estab¬ 
lished  by  law.  But  the  Congress  may  by  law  vest  the 
appointment  of  such  inferior  officers,  as  they  think  proper, 
in  the  President  alone,  in  the  Courts  of  Law,  or  in  the 
Heads  of  Departments.” 

§  282.  The  power  to  make  treaties  is  general,  and, 
of  course,  it  embraces  treaties  for  peace,  or  war  ;  for 
commerce,  or  cessions  of  territory  ;  for  alliance,  or  suc¬ 
cors  ;  for  indemnity  for  injuries,  or  payment  of  debts  ; 
for  the  recognition  or  establishment  of  principles  of  pub¬ 
lic  law  ;  and  for  any  other  purposes,  which  the  policy, 
necessities,  or  interests  of  independent  nations  may  dic¬ 
tate.  Such  a  power  is  so  large,  and  so  capable  of  abuse, 
that  it  ought  not  to  be  confided  to  any  one  man,  nor  even 
to  a  mere  majority  of  any  public  body,  in  a  republican 
government.  There  should  be  some  higher  pledge  for 
the  sound  policy  or  necessity  of  a  treaty.  It  should  re- 


POWERS  AND  DUTIES  OF  THE  PRESIDENT.  173 

ceive  the  sanction  of  such  a  number  of  public  functiona¬ 
ries,  as  would  furnish  a  sufficient  guaranty  of  such  policy 
or  necessity.  Two  thirds  of  the  Senate,  therefore,  are 
required  to  give  validity  to  a  treaty.  It  would  seem  to 
be  perfectly  safe  in  such  a  body,  under  such  circumstan¬ 
ces,  representing,  as  it  does,  all  the  States  of  the  Union. 
The  House  of  Representatives  would  not  have  been  so 
eligible  a  body,  because  it  is  more  numerous,  more  popu¬ 
lar  in  its  structure,  more  short  in  its  duration,  more  unfit 
to  act  upon  sudden  emergencies,  more  under  the  control 
of  a  few  States  ;  and,  from  its  organization,  it  may  fairly 
be  presumed  to  have  less  experience  in  public  affairs, 
and  less  knowledge  of  foreign  relations,  than  the  Senate. 

§  283.  The  power  of  appointment,  one  of  the  most 
important  and  delicate  in  a  republican  government,  is 
next  provided  for.  Upon  its  fair  and  honest  exercise, 
must,  in  a  great  measure,,  depend  the  vigor,  the  public 
virtue,  and  even  the  safety,  of  the  government.  If  it  shall 
ever  be  wielded  by  any  Executive,  exclusively  to  gratify 
his  own  ambition  or  resentments,  to  satisfy  his  own  per¬ 
sonal  favorites,  or  to  carry  his  own  political  measures, 
and,  still  more,  if  it  shall  ever  interfere  with  the  freedom 
of  elections  by  the  people,  or  suppress  the  honest  expres¬ 
sion  of  opinion  and  judgement  by  voters,  it  will  become 
one  of  the  most  dangerous  and  corrupt  engines  t6  destroy 
private  independence  and  public  liberty,  which  can  assail 
the  republic.  It  should,  therefore,  be  watched  in  every 
free  government  with  uncommon  vigilance,  as  it  may, 
otherwise,  soon  become  as  secret,  as  it  will  be  irresisti¬ 
ble,  in  its  mischievous  operations.  If  the  time  shall  ever 
arrive,  when  no  citizen  can  obtain  any  appointment  to 
office,  unless  he  submits  to  sacrifice  all  personal  indepen¬ 
dence  and  opinion,  and  to  become  the  mere  slave  of 
those,  who  can  confer  it,  it  is  not  difficult  to  foresee,  that 
the  power  of  appointment  will  then  become  the  fittest  in¬ 
strument  of  artful  men  to  accomplish  the  worst  purposes. 
The  framers  of  the  Constitution  were  aware  of  this  danger, 
and  have  sedulously  interposed  certain  guards  to  check,  if 
not  wholly  to  prevent,  the  abuse  of  the  power.  The  ad¬ 
vice  and  consent  of  the  Senate  is  required  to  the  appoint- 

15* 


I 

174  CONSTITUTION  OF  THE  UNITED  STATES. 

ment  of  ambassadors,  other  public  ministers,  consuls, 
judges  of  the  Supreme  Court,  and  other  high  officers. 

§  284.  The  mode  of  appointment  of  inferior  officers 
is  left  in  a  good  measure  to  the  discretion  of  Congress  ; 
and  the  power  may  be  vested  by  them  in  the  President, 
in  the  Courts  of  Law,  or  in  the  Heads  of  Departments. 
The  propriety  of  this  grant  of  discretionary  power,  in 
certain  cases,  cannot  well  be  doubted.  But  it  is  very 
questionable,  if  Congress  have  not  permitted  its  exercise, 
in  some  departments  of  the  government,  to  an  extent, 
which  may  be  highly  alarming,  and  even  incompatible 
with  the  sound  policy  and  interests  of  the  government. 
Some  departments  possess  only  the  unenviable  power 
of  appointing  their  own  clerks  ;  whilst  others  possess  a 
power  of  patronage,  which  almost  rivals  that  of  the  Pres¬ 
ident  himself ;  and  the  exercise  of  it  is  left,  in  a  great 
measure,  without  the  check  of  the  constitutional  advice 
or  consent  of  the  Senate. 

§  285.  It  is  observable,  that  the  Constitution  makes 
no  mention  of  any  power  of  removal  of  any  officer  by  the 
President,  or  by  any  other  body.  As,  however,  the 
tenure  of  office  is  not  provided  for  in  the  Constitution, 
except  in  the  judicial  department,  (where  it  is  during  good 
behavior,)  the  natural  inference  is,  that  all  other  officers 
are  to  hold  their  offices  during  pleasure,  or  during  such 
period,  as  Congress  shall  prescribe.  But  if  the  power  of 
removal  exists,  in  cases  where  the  term  of  office  is  not 
thus  limited  by  Congress,  the  question  is,  in  whom  does 
it  reside  ?  Does  it  reside  in  the  President  alone  ?  Or 
does  it  reside  in  the  body  intrusted  with  the  particular 
appointment  ?  It  was  maintained,  with  great  earnestness 
and  ability,  by  some  of  the  ablest  statesmen,  who  assisted 
in  framing  the  Constitution,  that  it  belonged  to  the  latter  ; 
and  that,  in  all  cases  where  the  advice  and  consent  of  the 
Senate  are  necessary  to  an  appointment,  the  same  advice 
and  consent  are  also  necessary  to  a  removal  from  office. 
In  short,  they  maintained,  with  great  force  of  argument 
and  reasoning,  that  the  power  of  removal  was  but  an  inci¬ 
dent  to  the  power  of  appointment,  and  that,  consequently, 
the  removal  could  only  take  place  by  the  appointing  pow- 


POWERS  AND  DUTIES  OF  THE  PRESIDENT.  175 


er,  and  was  consummated  only  by  a  new  appointment.  It 
is  singular  enough,  that  in  the  first  Congress,  jealous, 
as  it  was,  of  executive  power,  a  different  doctrine  was 
maintained,  viz.,  that  it  is  an  incident  to  the  executive 
department.  This  doctrine  arose  (it  has  been  said)  partly 
from  a  just  deference  to  the  great  man  (Washington) 
then  in  the  office  of  President,  and  partly  from  a  belief, 
that  a  removal  from  office  without  just  cause  would  be  an 
impeachable  offence  in  the  President ;  and,  therefore, 
that  there  could  be  no  danger  of  its  exercise,  except  in 
flagrant  cases  of  malversation,  or  incapacity  of  the  officer. 
This  latter  doctrine  has  ever  since  prevailed  in  practice  ; 
and  the  President  is  accordingly  now  permitted  to  exer¬ 
cise  the  power  of  removal,  without  any  restraint  from  the 
Senate,  although  the  Constitution,  in  the  enumeration  of 
his  powers,  is  wholly  silent  on  the  subject.  If  we  con¬ 
nect  this  power  of  removal,  thus  practically  expounded, 
with  another  power,  which  is  given  in  the  succeeding 
clause,  to  fill  up  vacancies  in  the  recess  of  the  Senate, 
the  chief  guards,  intended  by  the  Constitution,  over  the 
power  of  appointment,  may  become  utterly  nugatory.  A 
President  of  high  ambition  and  feeble  principles  may  re¬ 
move  all  officers,  and  make  new  appointments,  in  the 
recess  of  the  Senate  ;  and  if  his  choice  should  not  be 
confirmed  by  the  Senate,  he  may  reappoint  the  same 
persons  in  the  recess,  and  thus  set  at  defiance  the  salu¬ 
tary  check  of  the  Senate  in  all  such  cases. 

§  286.  The  clause  to  which  we  have  alluded  is,  u  The 
President  shall  have  power  to  fill  up  all  vacancies,  that 
may  happen  during  the  recess  of  the  Senate,  by  granting 
commissions,  which  shall  expire  at  the  end  of  their  next 
session.”  This  is  a  provision  almost  indispensable  to 
secure  a  due  performance  of  public  duties  by  officers  of 
the  government,  during  the  recess  of  the  Senate  ;  and  as 
the  appointments  are  but  temporary,  the  temptation  to  any 
abuse  of  the  power  would  seem  to  be  sufficiently  guarded, 
if  it  might  not  draw  in  its  train  the  dangerous  consequen¬ 
ces,  which  have  been  before^  stated. 

§  287.  The  third  section*of  the  second  article  enume¬ 
rates  the  duties  of  the  President.  u  He  shall  from  time  * 


176  CONSTITUTION  OF  THE  UNITED  STATES. 

to  time  give  to  the  Congress  information  of  the  state  of 
the  Union,  and  recommend  to  their  consideration  such 
measures,  as  he  shall  judge  necessary  and  expedient.  He 
may,  on  extraordinary  occasions,-  convene  both  Houses, 
or  either  of  them  ;  and  in  case  of  disagreement  between 
them,  with  respect  to  the  time  of  adjournment,  he  may 
adjourn  them  to  such  time,  as  he  shall  think  proper.  He 
shall  receive  ambassadors,  and  other  public  ministers.  He 
shall  take  care,  that  the  laws  be  faithfully  executed  ;  and 
shall  commission  all  the  officers  of  the  United  States.” 

§  288.  The  duty  of  giving  information  by  the  Presi¬ 
dent  to  Congress,  of  the  state  of  the  Union,  and  of  re¬ 
commending  measures,  would  seem  almost  too  clear  to 
require  any  express  provision.  But  it  is  not  without  its 
use.  It  fixes  the  responsibility  on  the  President ;  and, 
on  the  other  hand,  it  disables  Congress  from  taking  any 
objection,  that  he  is  impertinently  interfering  with  their 
appropriate  duties.  His  knowledge  of  public  affairs  may 
be  important  to  them  ;  and  the  people  ought  consequently 
to  have  a  right  to  demand  it.  His  recommendation  of 
measures  may  give  Congress  the  benefit  of  his  large  expe¬ 
rience  ;  and,  at  all  events,  may  compel  them  to  a  just  dis¬ 
charge  of  their  legislative  powers.  So  that,  in  this  way, 
each  department  may  be  brought  more  fully  before  the 
public,  both  as  to  what  each  does,  and  what  each  omits 
to  do,  and  each  will  share  the  responsibility  accordingly. 

§  289.  The  power  to  convene  Congress  on  extraordi¬ 
nary  occasions  is  founded  on  the  wisest  policy.  Sudden 
emergencies  may  arise  in  the  recess  of  Congress,  and  be 
wholly  beyond  any  previous  foresight,  yet  indispensable 
to  be  met  with  promptitude  and  vigor.  The  power  to 
adjourn  Congress,  in  cases  of  disagreement  between  the 
two  Houses,  is  a  quiet  way  of  disposing  of  a  practical 
difficulty  in  cases  of  irritation  or  obstinate  differences  of 
opinion  between  them. 

§  290.  The  power  to  receive  ambassadors  and  other 
public  ministers,  is  a  very  important  and  delicate  function  ; 
and  far  more  so,  than  it  seems  to  have  been  deemed  even 
by  the  framers  of  the  Constitution.  In  times  of  profound 
tranquillity  throughout  the  world,  it  may  properly  be  con- 


POWERS  AND  DUTIES  OF  THE  PRESIDENT.  177 


fided  to  the  Executive  alone.  But  it  is  not  so  clear,  that 
the  Senate  ought  not,  in  cases  of  revolutions  in  foreign 
governments,  to  partake  of  the  functions,  by  their  advice 
and  consent.  The  refusal  to  receive  an  ambassador  or 
minister,  is  sometimes  a  source  of  discontent  to  foreign 
nations,  and  may  even  provoke  public  hostilities.  But 
in  cases  of  revolution,  or  the  separation  of  a  kingdom  into 
two  or  more  distinct  governments,  the  acknowledgement 
of  an  ambassador  or  minister,  of  either  party,  is  often  treat¬ 
ed  as  an  interference  in  the  contest,  and  may  lead  to  an 
open  rupture.  There  would  therefore  seem  to  be  a  pecu¬ 
liar  propriety,  in  all  such  cases,  to  require  greater  caution 
on  the  part  of  the  Executive,  by  interposing  some  check 
upon  his  own  unlimited  discretion.  Our  own  times  have 
furnished  abundant  examples  of  the  critical  nature  of  the 
trust  ;  but  it  has  hitherto  been  exercised  with  such  sound 
judgement,  that  the  power  has  been  felt  to  be  practically 
safe,  and  eminently  useful. 

§  20 1.  Another  duty  of  the  President  is,  ct  to  take  care 
that  the  laws  be  faithfully  executed .  ”  And  by  the  laws 
we  are  here  to  understand,  not  merely  the  acts  of  Con¬ 
gress,  but  all  the  obligations  of  treaties,  and  all  the  requi¬ 
sitions  of  the  Constitution,  as  the  latter  are,  equally  with 
the  former,  the  u  supreme  law  of  the  land.”  The  great 
object  of  the  establishment  of  the  executive  department 
is,  to  accomplish,  in  this  enlarged  sense,  a  faithful  execu¬ 
tion  of  the  laws.  Without  it,  be  the  form  of  government 
whatever  it  may,  it  will  be  utterly  worthless  for  confidence, 
or  defence,  for  the  redress  of  grievances,  or  the  protec¬ 
tion  of  rights,  for  the  happiness  and  good  order  of  citi¬ 
zens,  or  for  the  public  and  political  liberties  of  the  peo¬ 
ple. 

§  292.  But  we  are  not  to  understand,  that  this  clause 
confers  on  the  President  any  new  and  substantial  power 
to  cause  the  laws  to  be  faithfully  executed,  by  any  means, 
which  he  shall  see  fit  to  adopt,  although  not  prescribed  by 
the  Constitution,  or  by  the  acts  of  Congress.  That  would 
be  to  clothe  him  with  an  absolute  despotic  power  over  the 
lives,  the  property,  and  the  rights  of  the  whole  people. 
A  tyrannical  President  might,  under  a  pretence  of  this 


178  CONSTITUTION  OF  THE  UNITED  STATES. 

sort,  punish  for  a  crime,  without  any  trial  by  jury,  or 
usurp  the  functions  of  other  departments  of  the  govern¬ 
ment.  The  true  interpretation  of  the  clause  is,  that  the 
President  is  to  use  all  such  means  as  the  Constitution  and 
laws  have  placed  at  his  disposal,  to  enforce  the  due  exe¬ 
cution  of  the  laws.  As,  for  example,  if  crimes  are  com¬ 
mitted,  he  is  to  direct  a  prosecution  by  the  proper  public 
officers,  and  see,  that  the  offenders  are  brought  to  justice. 
If  treaties  are  violated  by  foreign  nations,  he  is  to  make 
suitable  demands  for  a  due  enforcement  of  them  ;  but  he 
cannot  employ  the  public  force,  or  make  war,  to  accom¬ 
plish  the  purpose.  If  public  officers  refuse  or  neglect  to 
perform  their  appropriate  duties,  he  is  bound  to  remove 
them,  and  appoint  others  who  will  honestly  and  faithfully 
perform  them. 

§  293.  The  remaining  duty  is,  u  to  commission  all  the 
officers  of  the  United  States.”  The  President  cannot 
lawfully  refuse,  or  neglect  it  in  any  case,  where  it  is  re¬ 
quired  by  law.  It  is  not  designed,  as  some  have  incor¬ 
rectly  supposed,  to  give  him  a  control  over  all  appoint¬ 
ments  ;  but  to  give  to  the  officers  a  perfect  voucher  of 
their  right  to  office.  In  this  view,  it  is  highly  important, 
as  it  introduces  uniformity  and  regularity  into  all  the  de¬ 
partments  of  the  government,  and  furnishes  an  indisputa¬ 
ble  evidence  of  a  rightful  appointment. 

§  294.  The  remaining  section  of  this  article  contains 
an  enumeration  of  the  persons,  who  shall  be  liable  to  be 
removed  from  office  by  impeachment,  and  for  what  of¬ 
fences.  It  is,  c‘  The  President,  Vice  President,  and  all 
civil  officers  of  the  United  States,  shall  be  removed  from 
office,  on  impeachment  for,  and  conviction  of,  treason, 
bribery,  or  other  high  crimes  and  misdemeanors.”  The 
true  objects  and  interpretation  of  this  clause  have  been 
already  sufficiently  considered. 

§  295.  There  are  other  incidental  powers,  belonging 
to  the  executive  department,  which  are  necessarily  im¬ 
plied  from  the  nature  of  the  functions,  which  are  confided 
to  it.  Among  these,  must  necessarily  be  included  the 
power  to  perform  them,  without  any  obstruction  or  im¬ 
pediment  whatsoever.  The  President  cannot,  therefore, 


THE  JUDICIAL  DEPARTMENT. 


179 


be  liable  to  arrest,  imprisonment,  or  detention,  while  be 
is  in  the  discharge  of  the  duties  of  his  office  ;  and  for  this 
purpose  his  person  must  be  deemed,  in  civil  cases  at  least, 
to  possess  an  official  inviolability.  In  the  exercise  of  his 
political  powers,  he  is  to  use  his  own  discretion,  and  is 
accountable  only  to  his  country,  and  to  his  own  conscience. 
His  decision,  in  relation  to  these  powers,  is  subject  to  no 
control ;  and  his  discretion,  when  exercised,  is  conclusive. 
But  he  has  no  authority  to  control  other  officers  of  the 
government,  in  relation  to  the  duties  imposed  upon  them 
by  law,  in  cases  not  touching  his  own  political  powers. 

§  296.  Thus  is  closed  the  examination  of  the  rights, 
powers,  and  duties  of  the  Executive  department.  Unless 
my  judgement  has  been  unduly  biased,  I  think  it  will  be 
found  impossible  to  withhold  from  this  part  of  the  Consti¬ 
tution  a  tribute  of  profound  respect,  if  not  of  the  liveliest 
admiration.  All,  that  seems  desirable  in  order  to  gratify 
the  hopes,  secure  the  reverence,  and  sustain  the  dignity 
the  nation,  is,  that  it  should  always  be  occupied  by  a  man 
of  elevated  talents,  of  ripe  virtues,  of  incorruptible  integ¬ 
rity,  and  of  tried  patriotism  ;  one,  who  shall  forget  his 
own  interests,  and  remember,  that  he  represents  not  a 
party,  but  the  whole  nation  ;  one,  whose  fame  may  be 
rested  with  posterity,  not  upon  the  false  eulogies  of  favor¬ 
ites,  but  upon  the  solid  merit  of  having  preserved  the  glo¬ 
ry,  and  enhanced  the  prosperity  of  the  country. 


CHAPTER  XXX. 

The  Judicial  Department. 

§  297.  Having  finished  our  examination  of  the  struc¬ 
ture  and  organization  of  the  Legislative  and  Executive 
Departments,  we  next  come  to  an  examination  of  the 
remaining  coordinate  department,  the  Judiciary.  No 
one,  who  has  duly  reflected,  can  doubt,  that  the  existence 
of  such  a  department,  with  powers  coextensive  with  those 
of  the  Legislative  and  Executive  departments,  is  indispen- 


180  CONSTITUTION  OF  THE  UNITED  STATES. 

sable  to  the  safety  of  a  free  government.  Where  there 
is  no  Judiciary  department  to  interpret,  pronounce,  and 
execute  the  laws,  to  decide  controversies,  to  punish  offen¬ 
ces,  and  to  enforce  rights,  the  government  must  either 
perish  from  its  own  weakness,  or  the  other  departments 
of  government  must  usurp  powers  for  the  purpose  of 
commanding  obedience,  to  the  utter  extinction  of  civil  and 
political  liberty.  The  will  of  those  who  govern,  must, 
under  such  circumstances,  become  absolute  and  despotic  ; 
and  it  is  wholly  immaterial,  whether  absolute  power  be 
vested  in  a  single  tyrant,  or  in  an  assembly  of  tyrants.  No 
remark  is  better  founded  in  human  experience  than  that 
of  Montesquieu,  that  u  there  is  no  liberty,  if  the  judiciary 
be  not  separated  from  the  legislative  and  executive  pow¬ 
ers.”  It  is  no  less  true,  that  personal  security  and  pri¬ 
vate  property  depend  entirely  upon  the  wisdom,  integrity, 
and  stability  of  courts  of  justice.  How,  otherwise,  are 
the  innocent  to  be  protected  against  unjust  accusations,  or 
the  injured  to  obtain  redress  for  their  wrongs  ?  If  that 
government  can  be  truly  said  to  be  despotic  and  intolera¬ 
ble,  in  which  the  law  is  vague  and  uncertain  ;  it  cannot 
but  be  rendered  still  more  oppressive  and  more  mischiev¬ 
ous,  when  the  actual  administration  of  justice  is  depend¬ 
ent  upon  caprice,  or  favor,  upon  the  will  of  rulers,  or  the 
influence  of  popularity.  When  power  becomes  right,  it 
is  of  little  consequence,  whether  decisions  rest  upon  cor¬ 
ruption,  or  weakness,  upon  the  accidents  of  chance,  or 
upon  deliberate  wrong.  In  every  well-organized  govern¬ 
ment,  therefore,  with  reference  to  the  security  both  of 
public  rights  and  private  rights,  it  is  indispensable,  that 
there  should  be  a  judicial  department,  to  ascertain,  and 
decide,  rights,  to  punish  crimes,  to  administer  justice,  and 
to  protect  the  innocent  from  injury  and  usurpation. 

§  298.  In  the  National  Government,  the  judicial  power 
is  equally  as  important,  as  it  is  in  the  States.  The  want 
of  it  was  a  vital  defect  in  the  Confederation  ;  and  led  to 
the  most  serious  embarrassments  during  the  brief  existence 
of  that  ill-adjusted  instrument.  Without  it,  the  laws  of 
the  Union  would  be  perpetually  in  danger  of  being  con¬ 
travened  by  the  laws  of  the  States.  The  National  Gov- 


THE  JUDICIAL  DEPARTMENT. 


181 


ernment  would  be  reduced  to  a  servile  dependence  upon 
the  latter  for  the  due  execution  of  its  powers  ;  and  we 
should  have  reacted  over  the  same  solemn  mockery, 
which  began  in  the  neglect,  and  ended  in  the  ruin  of  the 
Confederation.  Power  without  adequate  means  to  en¬ 
force  it,  is  like  a  body  in  a  state  of  suspended  animation. 
For  all  practical  purposes,  it  is,  as  if  its  faculties  were 
extinguished.  A  single  State  might,  under  such  circum¬ 
stances,  at  its  mere  pleasure,  suspend  the  w?hole  opera¬ 
tions  of  the  Union. 

§  299.  Two  ends,  of  paramount  importance,  and  fun¬ 
damental  to  a  free  government,  are  to  be  attained  by  a 
National  Judiciary.  The  first  is,  a  due  execution  of  the 
powers  of  the  government  ;  the  second  is,  a  uniformity 
of  interpretation  and  operation  of  those  powers,  and  of 
the  laws  made  in  pursuance  of  them.  The  power  of  in¬ 
terpreting  the  laws,  necessarily  involves  the  power  to 
decide,  whether  they  are  conformable  to  the  Constitution, 
or  not ;  and  in  a  conflict  between  the  laws,  State  or 
National,  and  the  Constitution,  no  one  can  doubt,  that  the 
latter  is,  and  ought  to  be,  of  paramount  obligation  and 
force.  And,  accordingly,  it  has  always  been  deemed  a 
function  indispensable  to  the  safety  and  liberty  of  the  peo¬ 
ple,  that  courts  of  justice  should  have  a  right  to  declare 
void  such  laws,  as  violate  the  Constitution.  The  framers 
of  the  Constitution,  having  these  great  principles  in  view, 
unanimously  adopted  two  fundamental  resolutions  on  this 
subject  ;  first,  that  a  National  Judiciary  ought  to  be  estab¬ 
lished  ;  and  secondly,  that  it  ought  to  possess  powers  co¬ 
extensive  with  those  of  the  legislative  department. 

§  300.  The  third  article  of  the  Constitution  shows  the 
manner,  in  which  these  great  principles  are  carried  into 
effect.  The  first  section  is,  u  The  judicial  power  of  the 
United  States  shall  be  vested  in  one  Supreme  Court,  and 
in  such  inferior  courts,  as  the  Congress  may  from  time 
to  time  ordain  and  establish.  The  judges,  both  of  the 
supreme  and  inferior  courts,  shall  hold  their  offices  during 
good  behavior ;  and  shall  at  stated  times  receive  for  their 
services  a  compensation,  which  shall  not  be  diminished 
during  their  continuance  in  office.”  The  establishment 

16 


XIII. 


182  CONSTITUTION  OF  THE  UNITED  STATES. 

of  a  Supreme  Court  is  positively  required  ;  the  establish¬ 
ment  of  inferior  courts  is  left  to  the  discretion  of  Congress. 
Unless  a  Supreme  Court  were  established,  there  would 
be  no  adequate  means  to  insure  uniformity  in  the  inter¬ 
pretation  and  operations  of  the  Constitution  and  laws. 
Inferior  tribunals,  whether  State,  or  National,  might  con¬ 
strue  them  in  very  different  manners  ;  and,  thus  their 
full  obligation  might  be  admitted  in  one  State,  and  de¬ 
nied  in  another  State.  The  existence  of  a  Supreme 
Court  is,  therefore,  at  all  times  indispensable  for  the  pur¬ 
poses  of  public  justice  ;  and  it  is  accordingly  made  the 
imperative  and  absolute  duty  of  Congress  to  establish  such 
a  Court.  But  the  establishment  of  inferior  courts  may 
not,  in  all  cases,  and  under  all  circumstances,  be  as  indis¬ 
pensable.  And,  at  all  events,  the  nature  and  extent  of 
the  organization  and  jurisdiction  of  these  inferior  courts, 
may  properly  vary,  at  different  times,  to  suit  the  public 
convenience  and  exigencies.  The  power,  therefore,  to 
establish  these  courts,  as  well  as  prescribe  their  organiza¬ 
tion  and  jurisdiction,  is  confided  to  the  discretion  of  Con¬ 
gress. 

§  301 .  The  next  consideration  is,  the  mode  of  appoint¬ 
ment,  and  tenure  of  office,  of  the  judges.  We  have  already 
seen,  that  the  judges  of  the  Supreme  Court  are  to  be  ap¬ 
pointed  by  the  President,  by  and  with  the  advice  and 
consent  of  the  Senate.  The  appointment  of  inferior 
judges  is  not  expressly  provided  for.  But  it  has  either 
been  left  to  the  discretion  of  Congress,  or  silently  belongs 
to  the  President,  by  and  with  the  advice  and  consent  of 
the  Senate,  under  the  clause  already  considered,  author¬ 
izing  him  to  appoint  all  other  officers,  whose  appointments 
are  not  otherwise,  in  the  Constitution,  provided  for. 

§  302.  The  tenure  of  office  of  the  judges,  both  of  the 
Supreme  and  the  inferior  courts,  is  during  good  behavior. 
This  tenure  of  office  seems  indispensable  to  a  due  degree 
of  independence  and  firmness  on  their  part,  in  the  dis¬ 
charge  of  the  duties  of  their  office  ;  and  to  a  due  security 
to  the  people  for  their  fidelity  and  impartiality,  in  admin¬ 
istering  private  rights,  and  preserving  the  public  liberties. 
Such  was  the  opinion  of  the  framers  of  the  Constitution, 


THE  JUDICIAL  DEPARTMENT. 


183 


who  unanimously  agreed  to  this  tenure  of  office.  Let 
us  briefly  consider  some  of  the  reasoning,  by  which  it  is 
supported. 

§  303.  In  the  first  place,  factions  and  parties  are  quite 
as  common  in  republics,  as  in  monarchies  ;  and  the  same 
safeguards  are  as  indispensable  in  the  former,  as  in  the 
latter,  against  the  encroachments  of  party  spirit,  and  the 
tyranny  of  faction.  Laws,  however  wholesome  or  neces¬ 
sary,  are  sometimes  the  objects  of  temporary  aversion, 
of  popular  odium,  and  even  of  popular  resistance.  Noth¬ 
ing  is  more  easy  in  republics,  than  for  demagogues,  under 
artful  pretences,  to  stir  up  combinations  against  the  regu¬ 
lar  exercise  of  authority,  in  order  to  advance  their  own 
selfish  projects.  The  independence  and  impartiality  of 
upright  magistrates  often  interpose  barriers  to  the  success 
of  their  schemes,  which  make  them  the  secret  enemies 
of  any  regular  and  independent  administration  of  justice. 
If,  under  such  circumstances,  the  tenure  of  office  of  the 
judges  were  for  a  short  period,  they  could  easily  intimi¬ 
date  them  in  the  discharge  of  their  duties,  or,  by  render¬ 
ing  them  odious,  easily  displace  them.  And  thus  the 
minority  in  the  state,  whose  sole  reliance  for  protection, 
in  all  free  governments,  must  be  upon  the  Judiciary,  would 
be  deprived  of  their  natural  protectors. 

§  304.  In  the  next  place,  the  independence  of  the 
Judiciary  is  indispensable,  to  secure  the  people  against 
the  unintentional,  as  well  as  the  intentional  usurpations  of 
authority,  in  the  Executive  and  Legislative  departments, 
it  has  been  observed,  with  great  sagacity,  that  power  is 
perpetually  stealing  from  the  many  to  the  few  ;  and  that 
there  is  a  perpetual  tendency  in  the  Legislative  and  Exe¬ 
cutive  departments  to  absorb  all  power.  If  the  judges  are 
appointed  at  short  intervals,  either  by  the  Legislative  or 
by  the  Executive  authority,  they  will  naturally,  and  almost 
necessarily,  become  mere  dependents  upon  the  appoint¬ 
ing  power.  If  they  have  a  desire  to  obtain,  or  to  hold 
office,  they  will  at  all  times  evince  a  desire  to  follow,  and 
obey  the  will  of  the  predominant  power  in  the  state. 
Public  justice  will  be  administered  with  a  faltering  and 
feeble  hand.  The  Judiciary  will  under  such  circum- 


184  CONSTITUTION  OF  THE  UNITED  STATES. 

t 

stances  seek  little  but  the  possession  of  office,  and  the 
approbation  of  those  who  value,  because  they  can  con¬ 
trol  it.  It  will  be  apt  to  decree,  what  best  suits  the 
opinions  of  the  day  ;  and  to  forget,  that  the  precepts  of 
the  law  rest  on  eternal  foundations,  and  are  not  to  be 
changed  at  the  arbitrary  will  of  the  judges.  The  rulers 
and  the  citizens  will  not  stand  upon  an  equal  ground  in 
litigations.  The  favorites  of  the  day  will  overcome  by 
their  power,  or  seduce  by  their  influence.  And  thus  the 
fundamental  maxim  of  a  republic,  that  it  ought  to  be  a 
Government  of  laws,  and  not  of  men,  will  be  silently 
disproved,  or  openly  abandoned. 

§  305.  In  the  next  place,  all  these  considerations  ac¬ 
quire  still  more  cogency  and  force,  when  applied  to  con¬ 
stitutional  questions.  These  questions  may  arise,  not 
merely  between  citizen  and  citizen,  but  between  State 
and  State,  and  between  the  United  States  and  the  States. 
Can  it  be  supposed,  for  a  moment,  that  men,  who  hold 
their  offices  for  two,  or  four,  or  even  six  years,  would  be 
generally  found  firm  enough  to  resist  the  will  of  those, 
who  have  appointed  them,  and  can  so  soon  displace  them  ? 
If  they  are  to  administer  the  Constitution,  according  to  its 
true  spirit  and  principles,  to  support  the  weak  against  the 
strong,  the  humble  against  the  powerful,  the  few  against 
the  many  ;  how  can  they  be  expected  to  possess  the 
requisite  independence  and  impartiality,  unless  they  hold 
their  offices  by  a  tenure  beyond  the  reach  of  the  power 
of  the  Legislature  and  Executive  ?  He  is  ill  read  in 
the  history  of  human  experience,  who  does  not  foresee, 
as  well  as  provide  for,  such  exigencies.  In  republics,  the 
other  departments  of  the  government  may  sometimes,  if 
not  frequently,  be  found  combined  in  hostility  against  the 
Judiciary  ;  and  even  the  people,  for  a  while,  under  the 
influence  of  party  spirit  and  turbulent  factions,  may  be 
ready  to  abandon  the  judges  to  their  fate.  Few  men 
possess  the  firmness  to  resist  the  torrent  of  popular  opin¬ 
ion,  or  popular  prejudice.  Still  fewer  are  content  to 
sacrifice  present  ease  and  popular  favor,  in  order  to  earn 
the  slow  rewards  of  a  conscientious  discharge  of  their 
duty.  If  we  would  preserve  the  Constitution  from  inter- 


THE  JUDICIAL  DEPARTMENT. 


185 


nal,  as  well  as  from  external  perils,  from  the  influences  of 
the  great,  and  the  corruptions  of  the  selfish  and  ambitious, 
we  must  place  around  it  every  guard,  which  experience 
has  shown  will  encourage  good  men  in  their  integrity,  and 
will  awe  bad  men  in  their  intrigues.  If  the  Constitution 
ever  perishes,  it  will  be,  when  the  Judiciary  shall  have 
become  feeble  and  inert,  and  either  unwilling  or  unable 
to  perform  the  solemn  duties  imposed  upon  it  by  the  ori¬ 
ginal  structure  of  the  Government.  Hitherto,  no  attempts 
have  been  made  to  alter  the  Constitution,  in  respect  to  the 
tenure  of  office.  The  views  of  the  framers  of  it  have,  in 
all  the  vicissitudes  of  party,  still  been  supported  by  the 
general  approbation  of  the  people.  And,  if  any  changes 
shall  hereafter  be  proposed,  which  shall  diminish  the  just 
authority  of  this,  as  an  independent  department,  they  will 
only  be  matters  of  regret,  so  far  as  they  may  take  away 
any  checks  to  the  exercise  of  arbitrary  power  by  either  of 
the  other  Departments  of  the  Government. 

§  306.  But  the  tenure  of  office  during  good  behavior, 
would  be  of  little  consequence,  if  Congress  possessed  an 
unlimited  power  over  the  compensation  of  the  judges.  It 
has  been  well  remarked,  that,  in  the  course  of  human  af¬ 
fairs,  a  power  over  a  man’s  subsistence  is  a  power  over 
Ills  will.  If  Congress  could  diminish  at  pleasure  the  sal¬ 
aries  of  the  judges,  they  could  reduce  it  to  a  mere  pit¬ 
tance,  and  thus  might  sink  them  into  an  abject  dependence. 
The  Constitution  has,  therefore,  wisely  provided,  that  the 
compensation  of  the  judges  shall  not  be  diminished  during 
their  continuance  in  office,  and  shall  be  paid  at  stated 
times. 

§  307.  It  is  almost  unnecessary  to  add,  that,  although 
the  Constitution  has  thus  sedulously  endeavored,  from 
motives  of  public  good,  to  place  the  independence  of  the 
Judiciary  upon  a  solid  basis  ;  yet,  the  judges  are  not  be¬ 
yond  the  reach  of  the  law.  Th'ey  hold,  their  offices  du¬ 
ring  good  behavior  only  ;  and  for  misconduct,  they  may 
be  removed  from  office  upon  impeachment.  Thus,  per¬ 
sonal  responsibility  is  brought  home  to  them  ;  and,  like 
all  other  public  functionaries,  they  are  also  bound  by  an 
oath  to  obey  the  laws,  and  support  the  Constitution. 

16* 


186  CONSTITUTION  OF  THE  UNITED  STATES. 


CHAPTER  XXXL 

POWERS  AND  JURISDICTION  OF  THE  JUDICIARY. 

§  308.  The  next,  the  second  section  of  the  third  arti¬ 
cle,  contains  an  exposition  of  the  jurisdiction  appertaining 
to  the  National  Judiciary.  “  The  judicial  power  shall 
extend  to  all  cases  in  law  and  equity,  arising  under  this 
Constitution,  the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  authority  ;  to 
all  cases  affecting  ambassadors,  other  public  ministers, 
and  consuls  ;  to  all  cases  of  admiralty  and  maritime  juris¬ 
diction  ;  to  controversies,  to  which  the  United  States 
shall  be  a  party  ;  to  controversies  between  two  or  more 
States  ;  between  a  State  and  citizens  of  another  State  ; 
between  citizens  of  different  States  ;  between  citizens  of 
the  same  State,  claiming  lands  under  grants  of  different 
States  ;  and  between  a  State,  or  the  citizens  thereof,  and 
foreign  states,  citizens,  or  subjects.” 

§  309.  In  a  work  like  the  present,  it  is  impossible  to 
present  a  lull  exposition  of  the  reasons  for  conferring  the 
different  portions  of  this  jurisdiction,  all  having  the  same 
general  object,  the  promotion  of  harmony,  good  order, 
and  justice  at  home,  and  the  preservation  of  peace  and 
commercial  intercourse  abroad.  In  a  general  summary, 
it  may  be  said,  that  the  jurisdiction  extends  to  cases  arising 
under  the  Constitution,  laws,  and  treaties,  of  the  United 
States,  because  the  judicial  power  ought  to  be  coexten¬ 
sive  with  the  legislative  and  executive  powers,  in  order 
to  ensure  uniformity  of  interpretation  and  operation  of  the 
Constitution,  laws,  and  treaties,  and  the  means  of  enforc¬ 
ing  rights,  duties,  and  remedies,  arising  under  them.  It 
extends  to  cases  affecting  ambassadors,  public  ministers, 
and  consuls,  because  they  are  officers  of  foreign  nations, 
entitled  by  the  law  of  nations  to  the  protection  of  our  Gov¬ 
ernment  ;  and  any  misconduct  towards  them  might  lead 
to  private  retaliations,  or  open  hostilities,  on  the  part  of 


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187 


the  offended  Government.  It  extends  to  cases  of  admi¬ 
ralty  and  maritime  jurisdiction,  because  such  cases  grow 
out  of,  and  are  intimately  connected  with,  foreign  com¬ 
merce  and  navigation,  with  offences  committed  on  the 
ocean,  and  with  the  right  of  making  captures,  and  carry¬ 
ing  on  the  operations  of  war.  It  extends  to  controver¬ 
sies,  to  which  the  United  States  are  a  party,  because  the 
Government  ought  to  possess  a  right  to  resort  to  National 
courts,  to  decide  all  controversies  and  contracts,  to  which 
it  is  a  party.  It  extends  to  controversies  between  two  or 
more  States,  in  order  to  furnish  a  peaceable  and  impartial 
tribunal,  to  decide  cases,  where  different  States  claim 
conflicting  rights,  in  order  to  prevent  gross  irritations,  and 
border  warfare.  It  extends  to  controversies  between  a 
State  and  the  citizens  of  another  State  ;  because  a  State 
ought  not  to  be  the  sole  judge  of  its  own  rights,  as  against 
the  citizens  of  other  States.  It  extends  to  controversies 
between  citizens  of  different  States  ;  because  these  con¬ 
troversies  may  embrace  questions,  upon  which  the  tribu¬ 
nals  of  neither  State  could  be  presumed  to  be  perfectly 
impartial,  from  the  peculiar  public  interests  involved  in 
them.  It  extends  to  controversies  between  citizens  of 
the  same  State,  claiming  lands  under  grants  of  different 
States  ;  because  a  similar  doubt  of  impartiality  may  arise, 
[t  extends  to  controversies  between  a  State,  or  its  citizens, 
and  foreign  States,  citizens,  or  subjects  ;  because  foreign 
States  and  citizens  have  a  right  to  demand  an  impartial 
tribunal  for  the  decision  of  cases,  to  which  they  are  a  par¬ 
ty  ;  and  want  of  confidence  in  the  tribunals  of  one  par¬ 
ty  may  be  fatal  to  the  public  tranquillity,  or  at  least,  may 
create  a  discouraging  sense  of  injustice.  Even  this  cur¬ 
sory  view  cannot  fail  to  satisfy  reasonable  minds  of  the 
importance  of  the  powers  of  the  National  Judiciary  to  the 
tranquillity  and  sovereignty  of  the  States,  and  to  the  pre¬ 
servation  of  the  rights  and  liberties  of  the  people. 

§  310.  But  the  subject  is  so  important,  and  has  so  often 
become  matter  of  political  discussion,  and  constitutional 
inquiry,  that  it  deserves  to  be  examined  more  at  large  in 
this  place.  We  shall,  therefore,  proceed  to  examine 
each  of  these  cases,  in  which  jurisdiction  is  conferred,  in 


188  CONSTITUTION  OF  THE  UNITED  STATES. 

the  order,  in  which  it  stands,  in  order  more  fully  to  com¬ 
prehend  the  particular  reasons,  on  which  it  is  founded. 

§  311.  And  first  :  The  judicial  power  extends  to  all 
cases  in  law  and  equity,  arising  under  the  Constitution,  the 
laws,  and  the  treaties,  of  the  United  States.  And,  by 
cases  in  this  clause,  we  are  to  understand  criminal,  as  well 
as  civil,  cases. 

§  312.  The  propriety  of  the  delegation  of  jurisdiction, 
in  u  cases  arising  under  the  Constitution,”  rests  on  the 
obvious  consideration,  that  there  ought  always  to  be  some 
constitutional  method  of  giving  effect  to  constitutional 
provisions.  What,  for  instance,  would  avail  restrictions 
on  the  authority  of  the  State  Legislatures,  without  some 
constitutional  mode  of  enforcing  the  observance  of  them  ? 
The  States  are,  by  the  Constitution,  prohibited  from  doing 
a  variety  of  things  ;  some  of  which  are  incompatible  with 
the  interests  of  the  Union  ;  others,  with  its  peace  and 
safety  ;  others,  with  the  principles  of  good  government. 
The  imposition  of  duties  on  imported  articles,  the  declar¬ 
ation  of  war,  and  the  emission  of  paper  money,  are  ex¬ 
amples  of  each  kind.  No  man  of  sense  will  believe,  that 
such  prohibitions  would  be  scrupulously  regarded,  without 
some  effectual  power  in  the  Government  to  restrain,  or 
correct  the  infractions  of  them.  The  power  must  be 
either  a  direct  negative  on  the  State  laws,  or  an  authority 
in  the  National  courts  to  overrule  such,  as  shall  manifestly 
be  in  contravention  to  the  Constitution.  The  latter  course 
was  thought  by  the  Convention  to  be  preferable  to  the 
former  ;  and  it  is,  without  question,  by  far  the  most  ac¬ 
ceptable  to  the  States. 

§  313.  The  same  reasoning  applies,  with  equal  force, 
to  u  cases  arising  under  the  laws  of  the  United  States.” 
In  fact,  the  necessity  of  uniformity,  in  the  interpretation 
of  these  laws,  would  of  itself  settle  every  doubt,  that  could 
be  raised  on  the  subject.  u  Thirteen  independent  courts 
of  final  jurisdiction  over  the  same  causes,  (it  was  said,)  is 
a  Hydra  in  government,  from  which  nothing  but  contra¬ 
diction  and  confusion  can  proceed.”  The  number  is  now 
increased  to  twenty-six. 

§  314.  There  is  still  more  cogency,  if  it  be  possible, 


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189 


in  the  reasoning,  as  applied  to  “  cases  arising  under  trea¬ 
ties  made,  or  which  shall  be  made,  under  the  authority 
of  the  United  States.”  Without  this  power,  there  would 
be  perpetual  danger  of  collision,  and  even  of  war,  with 
foreign  powers,  and  an  utter  incapacity  to  fulfil  the  ordi¬ 
nary  obligations  of  treaties.  The  want  of  this  power  was 
(as  we  have  seen)  a  most  mischievous  defect  in  the  Con¬ 
federation  ;  and  subjected  the  country,  not  only  to  viola¬ 
tions  of  its  plighted  faith,  but  to  the  gross,  and  almost 
proverbial,  imputation  of  punic  insincerity. 

§  315.  It  is  observable,  that  the  language  is,  that  “the 
judicial  power  shall  extend  to  all  cases  in  law  and  equity ,” 
arising  under  the  Constitution,  laws,  and  treaties,  of  the 
United  States.  What  is  to  be  understood  by  “cases  in 
law  and  equity,”  in  this  clause  ?  Plainly,  cases  at  the 
common  law,  as  contradistinguished  from  cases  in  equity, 
according  to  the  known  distinction  in  the  jurisprudence 
of  England,  which  our  ancestors  brought  with  them  upon 
their  emigration,  and  with  which  all  the  American  States 
were  familiarly  acquainted.  Here,  then,  at  least,  the 
Constitution  of  the  United  States  appeals  to,  and  adopts, 
the  common  law,  to  the  extent  of  making  it  a  rule  in  the 
pursuit  of  remedial  justice  in  the  courts  of  the  Union.  If 
the  remedy  must  be  in  law,  or  in  equity,  according  to  the 
course  of  proceedings  at  the  common  law,  in  cases  arising 
under  the  Constitution,  laws,  and  treaties  of  the  United 
States,  it  would  seem  irresistibly  to  follow,  that  the  prin¬ 
ciples  of  decision,  by  which  these  .remedies  must  be 
administered,  must  be  derived  from  the  same  source. 
Hitherto,  such  has  been  the  uniform  interpretation  and 
mode  of  administering  justice,  in  civil  suits,  in  the  courts 
of  the  United  States,  in  this  class  of  cases. 

§  316.  Another  inquiry  may  be,  what  constitutes  a 
case ,  within  the  meaning  of  this  clause.  It  is  clear,  that 
the  Judicial  department  is  authorized  to  exercise  jurisdic¬ 
tion  to  the  full  extent  of  the  Constitution,  laws,  and  trea¬ 
ties,  of  the  United  States,  whenever  any  question  respect¬ 
ing  them  shall  assume  such  a  form,  that  the  judicial  pow¬ 
er  is  capable  of  acting  upon  it.  When  it  has  assumed 
such  a  form,  it  then  becomes  a  case  ;  and  then,  and  not 


190  CONSTITUTION  OF  THE  UNITED  STATES. 

till  then,  the  judicial  power  attaches  to  it.  A  case,  then, 
in  the  sense  of  this  clause  of  the  Constitution,  arises,  when 
some  subject,  touching  the  Constitution,  laws,  or  treaties, 
of  the  United  States,  is  submitted  to  the  court  by  a  par¬ 
ty,  who  asserts  his  rights  in  the  form  prescribed  by  law. 
In  other  words,  a  case  is  a  suit  in  law  or  equity,  instituted 
according  to  the  regular  course  of  judicial  proceedings  ; 
and,  when  it  involves  any  question  arising  under  the  Con¬ 
stitution,  laws,  or  treaties,  of  the  United  States,  it  is  within 
the  judicial  power  confided  to  the  Union. 

§  317.  Cases  arising  under  the  Constitution,  as  contra¬ 
distinguished  from  those,  arising  under  the  laws  of  the 
United  States,  are  such  as  arise  from  the  powers  conferred, 
or  privileges  granted,  or  rights  claimed,  or  protection  se¬ 
cured,  or  prohibitions  contained,  in  the  Constitution  itself, 
independent  of  any  particular  statute  enactment.  Many 
cases  of  this  sort  may  easily  be  enumerated.  Thus,  if  a 
citizen  of  one  State  should  be  denied  the  privileges  of  a 
citizen  in  another  State  ;  if  a  State  should  coin  money, 
or  make  paper  money  a  tender  ;  if  a  person,  tried  for  a 
crime  against  the  United  States,  should  be  denied  a  trial 
by  jury,  or  a  trial  in  the  State,  where  the  crime  is  charged 
to  be  committed  ;  if  a  person,  held  to  labor,  or  service, 
in  one  State,  under  the  laws  thereof,  should  escape  into 
another,  and  there  should  be  a  refusal  to  deliver  him  up 
to  the  party,  to  whom  such  service  or  labor  may  be  due  ;  in 
these,  and  many  other  cases,  the  question,  to  be  judicially 
decided,  would  be  a  case  arising  under  the  Constitution. 
On  the  other  hand,  cases  arising  under  the  laws  of  the 
United  States,  are  such  as  grow  out  of  the  legislation  of 
Congress,  within  the  scope  of  their  constitutional  autho¬ 
rity,  whether  they  constitute  the  right,  or  privilege,  or 
claim,  or  protection,  or  defence,  of  the  party,  in  whole 
or  in  part,  by  whom  they  are  asserted.  The  same  rea¬ 
soning  applies  to  cases  arising  under  treaties.  Indeed, 
wherever,  in  a  judicial  proceeding,  any  question  arises, 
touching  the  validity  of  a  treaty,  or  statute,  or  authority, 
exercised  under  the  United  States,  or  touching  the  con¬ 
struction  of  any  clause  of  the  Constitution,  or  any  statute, 
or  treaty,  of  the  United  States  ;  or  touching  the  validity 


JURISDICTION  OF  THE  JUDICIARY. 


191 


of  any  statute,  or  authority  exercised  under  any  State,  on 
the  ground  of  repugnancy  to  the  Constitution,  laws,  or 
treaties,  of  the  United  States,  it  has  been  invariably  held 
to  be  a  case,  to  which  the  judicial  power  of  the  United 
States  extends. 

§  31S.  It  has  sometimes  been  suggested,  that  a  case, 
to  be  within  the  purview  of  this  clause,  must  be  one,  in 
which  a  party  comes  into  court  to  demand  something  con¬ 
ferred  on  him  by  the  Constitution,  or  a  law,  or  a  treaty, 
of  the  United  States.  But  this  construction  is  clearly  too 
narrow.  A  case  in  law  or  equity  consists  of  the  right  of 
the  one  party,  as  well  as  of  the  other,  and  may  truly  be 
said  to  arise  under  the  Constitution,  ora  law,  or  a  treaty, 
of  the  United  States,  whenever  its  correct  decision  de¬ 
pends  on  the  construction  of  either.  This  is  manifestly 
the  construction  given  to  the  clause  by  Congress,  by  the 
25th  section  of  the  Judiciary  act,  (which  was  almost 
contemporaneous  with  the  Constitution,)  and  there  is  no 
reason  to  doubt  its  solidity  or  correctness.  Indeed,  the 
main  object  of  this  clause  would  be  defeated  by  any  nar¬ 
rower  construction  ;  since  the  power  was  conferred  for 
the  purpose,  in  an  especial  manner,  of  producing  a  uni¬ 
formity  of  construction  of  the  Constitution,  laws,  and  trea¬ 
ties,  of  the  United  States. 

§  319.  Cases  may  also  arise  under  laws  of  the  United 
States  by  implication,  as  well  as  by  express  enactment  ; 
so  that  due  redress  may  be  administered  by  the  judicial 
power  of  the  United  States.  It  is  not  unusual  for  a  le¬ 
gislative  act  to  involve  consequences,  which  are  not  ex¬ 
pressed.  An  officer,  for  example,  is  ordered  to  arrest 
an  individual.  It  is  not  necessary,  nor  is  it  usual,  to  say, 
that  he  shall  not  be  punished  for  obeying  this  order.  Iiis 
security  is  implied  in  the  order  itself.  It  is  no  unusual 
thing  for  an  act  of  Congress  to  imply,  without  expressing, 
this  very  exemption  from  State  control.  The  collectors 
of  the  revenue,  the  carriers  of  the  mail,  the  mint  estab¬ 
lishment,  and  all  those  institutions,  which  are  public  in 
their  nature,  are  examples  in  point.  It  has  never  been 
doubted,  that  all,  who  are  employed  in  them,  are  protect¬ 
ed,  while  in  the  line  of  their  duty  ;  and  yet  this  protec- 


192  CONSTITUTION  OF  THE  UNITED  STATES. 

tion  is  not  expressed  in  any  act  of  Congress.  It  is  inci¬ 
dental  to,  and  is  implied  in,  the  several  acts,  by  which 
those  institutions  are  created  ;  and  it  is  secured  to  the  in¬ 
dividuals,  employed  in  them,  by  the  judicial  power  alone  ; 
that  is,  the  judicial  power  is  the  instrument  employed  by 
the  Government  in  administering  this  security. 

§  320.  It  has  also  been  asked,  and  may  again  be  asked, 
why  the  words,  u  cases  in  equity,”  are  found  in  this 
clause  ?  What  equitable  causes  can  grow  out  of  the  Con¬ 
stitution,  laws,  and  treaties,  of  the  United  States?  To 
this,  the  general  answer  seems  at  once  clear  and  satisfac¬ 
tory.  There  is  hardly  a  subject  of  litigation  between 
individuals,  which  may  not  involve  those  ingredients  of 
fraud ,  accident ,  trust ,  or  hardship ,  which  would  render 
the  matter  an  object  of  equitable,  rather  than  of  legal, 
jurisdiction,  as  the  distinction  is  known  and  established  in 
several  of  the  States.  It  is  the  peculiar  province,  for 
instance,  of  a  court  of  equity,  to  relieve  against  what  are 
called  hard  bargains.  These  are  contracts,  in  which, 
though  there  may  have  been  no  direct  fraud  or  deceit, 
sufficient  to  invalidate  them  in  a  court  of  law  ;  yet  there 
may  have  been  some  undue  and  unconscionable  advan¬ 
tage  taken  of  the  necessities,  or  misfortunes,  of  one  of 
the  parties,  which  a  court  of  equity  would  not  tolerate. 
In  such  cases,  where  foreigners  were  concerned  on  either 
side,  it  would  be  impossible  for  the  Federal  judicatories 
to  do  justice,  without  an  equitable,  as  well  as  a  legal  ju¬ 
risdiction.  Agreements  to  convey  lands,  claimed  under 
the  grants  of  different  States,  may  afford  another  example 
of  the  necessity  of  an  equitable  jurisdiction  in  the  Federal 
courts.  This  reasoning  may  not  be  so  palpable  in  those 
States,  where  the  formal  and  technical  distinction  between 
law  and  equity  is  not  maintained,  as  in  other  States, 
where  it  is  exemplified  by  every  day’s  practice. 

§321.  The  next  clause,  extends  the  judicial  power 
<c  to  all  cases  affecting  ambassadors,  other  public  min¬ 
isters,  and  consuls.”  The  propriety  of  this  delegation 
of  power  to  the  National  Judiciary  will  scarcely  be  ques¬ 
tioned  by  any  persons,  who  have  duly  reflected  upon  the 
subject.  There  are  various  grades  of  public  ministers, 


JURISDICTION  OF  THE  JUDICIARY. 


193 


from  ambassadors,  (which  is  the  highest  grade,)  down  to 
common  resident  ministers,  whose  rank,  and  diplomatic 
precedence,  and  authority,  are  well  known,  and  well  as¬ 
certained,  in  the  law  and  usages  of  nations.  But  what¬ 
ever  may  be  their  relative  rank  and  grade,  public  minis¬ 
ters  of  every  class  are  the  immediate  representatives  of 
their  sovereigns.  As  such  representatives,  they  owe  no 
subjection  to  any  laws,  but  those  of  their  own  country, 
any  more  than  their  sovereign  ;  and  their  actions  are  not 
generally  deemed  subject  to  the  control  of  the  private 
law  of  that  State,  wherein  they  are  appointed  to  reside. 
He,  that  is  subject  to  the  coercion  of  laws,  is  necessarily 
dependent  on  that  power,  by  whom  those  laws  were  mader 
But  public  ministers  ought,  in  order  to  perform  their  du¬ 
ties  to  their  own  sovereign,  to  be  independent  of  every 
power,  except  that  by  which  they  are  sent  ;  and,  of  con¬ 
sequence,  ought  not  to  be  subject  to  the  mere  municipal 
law  of  that  nation,  wherein  they  are  to  exercise  their 
functions.  The  rights,  the  powers,  the  duties,  and  the 
privileges,  of  public  ministers,  are,  therefore,  to  be  deter¬ 
mined,  not  by  any  municipal  constitutions,  but  by  the  law 
of  nature  and  nations,  which  is  equally  obligatory  upon 
all  sovereigns,  and  all  states.  What  these  rights,  powers, 
duties,  and  privileges  are,  are  inquiries  properly  belong¬ 
ing  to  a  treatise  on  the  law  of  nations,  and  need  not  be 
discussed  here.  But  it  is  obvious,  that  every  question, 
in  which  these  rights,  powers,  duties,  and  privileges  are 
involved,  is  so  intimately  connected  with  the  public  peace, 
and  policy,  and  diplomacy,  of  the  nation,  and  touches  the 
dignity  and  interest  of  the  sovereigns  of  the  ministers 
concerned  so  deeply,  that  it  would  be  unsafe,  that  they 
should  be  submitted  to  any  other,  than  the  highest  judica¬ 
ture  of  the  nation. 

§  322.  Consuls,  indeed,  have  not  in  strictness  a  diplo¬ 
matic  character.  They  are  deemed  to  be  mere  commer¬ 
cial  agents  :  and,  therefore,  partake  of  the  ordinary  char¬ 
acter  of  such  agents  ;  and  are  subject  to  the  municipal 
laws  of  the  countries,  where  they  reside.  Yet,  as  they 
are  the  public  agents  of  the  nation,  to  which  they  belong, 
and  are  often  entrusted  with  the  performance  of  very  deli- 

17  XIII. 


194  CONSTITUTION  OF  THE  UNITED  STATES. 

cate  functions  of  state,  and  as  they  might  be  greatly  em¬ 
barrassed  by  being  subject  to  the  ordinary  jurisdiction  of 
inferior  tribunals,  State  and  National,  it  was  thought 
highly  expedient  to  extend  the  original  jurisdiction  of  the 
Supreme  Court  to  them  also.  The  propriety  of  vesting 
jurisdiction,  in  such  cases,  in  some  of  the  National  courts, 
seems  hardly  to  have  been  questioned  by  the  most  zeal¬ 
ous  opponents  of  the  Constitution.  And  in  cases  against 
ambassadors,  and  other  foreign  ministers,  and  consuls, 
the  jurisdiction  has  been  deemed  exclusive. 

§  323.  The  next  clause  extends  the  judicial  power 
“  to  all  cases  of  admiralty  and  maritime  jurisdiction.” 

§  324.  The  admiralty  and  maritime  jurisdiction,  (and 
the  word,  “  maritime,”  was  doubtless  added  to  guard 
against  any  narrow  interpretation  of  the  preceding  word, 
“admiralty,”)  conferred  by  the  Constitution,  embraces 
two  great  classes  of  cases  ;  one  dependent  upon  locality, 
and  the  other  upon  the  nature  of  the  contract.  The  first, 
respects  acts,  or  injuries,  done  upon  the  high  sea,  where 
all  nations  claim  a  common  right  and  common  jurisdic¬ 
tion  ;  or  acts,  or  injuries,  done  upon  the  coast  of  the  sea  ; 
or,  at  farthest,  acts  and  injuries  done  within  the  ebb  and 
flow  of  the  tide.  The  second,  respects  contracts,  claims, 
and  services  purely  maritime,  and  touching  rights  and  du¬ 
ties  appertaining  to  commerce  and  navigation.  The  for¬ 
mer  is  again  divisible  into  two  great  branches,  one  embrac¬ 
ing  captures,  and  questions  of  prize  arising  by  the  rights  of 
war  ;  the  other  embracing  acts,  torts,  and  injuries,  strictly 
of  civil  cognizance,  independent  of  belligerent  operations. 

§  325.  By  the  law  of  nations,  the  cognizance  of  all 
captures,  jure  belli ,  or,  as  it  is  more  familiarly  phrased, 
of  all  questions  of  prize,  and  their  incidents,  belongs  ex¬ 
clusively  to  the  courts  of  the  country,  to  which  the  cap- 
tors  belong,  and  from  whom  they  derive  their  authority 
to  make  the  capture.  No  neutral  nation  has  any  right  to 
inquire  into,  or  to  decide  upon,  the  validity  of  such  cap¬ 
ture,  even  though  it  should  concern  property  belonging 
to  its  own  citizens  or  subjects,  unless  its  own  sovereign 
or  territorial  rights  are  violated  ;  but  the  sole  and  exclu¬ 
sive  jurisdiction  belongs  to  the  courts  of  the  capturing  bel- 


JURISDICTION  OF  THE  JUDICIARY. 


195 


ligerent.  And  this  jurisdiction,  by  the  common  consent 
of  nations,  is  vested  exclusively  in  courts  of  admiralty,  pos¬ 
sessing  an  original,  or  appellate  jurisdiction.  The  courts 
of  common  law  are  bound  to  abstain  from  any  decision  of 
questions  of  this  sort,  whether  they  arise  directly  or  indi¬ 
rectly  in  judgement.  The  remedy  for  illegal  acts  of  cap¬ 
ture  is,  by  the  institution  of  proper  prize  proceedings  in  the 
prize  courts  of  the  captors.  If  justice  be  there  denied,  the 
nation  itself  becomes  responsible  to  the  parties  aggrieved  ; 
and  if  every  remedy  is  refused,  it  then  becomes  a  subject 
for  the  consideration  of  the  nation,  to  which  the  parties 
aggrieved  belong,  which  may  vindicate  their  rights,  either 
by  a  peaceful  appeal  to  negotiation,  or  by  a  resort  to  arms. 

§  326.  It  is  obvious,  upon  the  slightest  consideration, 
that  the  cognizance  of  all  questions  of  prize,  made  under 
the  authority  of  the  United  States,  ought  to  belong  exclu¬ 
sively  to  the  National  courts.  How,  otherwise,  can  the 
legality  of  the  captures  be  satisfactorily  ascertained,  or  de¬ 
liberately  vindicated  ?  It  seems  not  only  a  natural,  but  a 
necessary,  appendage  to  the  power  of  war,  and  of  negotia¬ 
tion  with  foreign  nations.  It  would  otherwise  follow,  that 
the  peace  of  the  whole  nation  might  be  put  at  hazard,  at 
any  time,  by  the  misconduct  of  one  of  its  members.  It. 
could  neither  restore,  upon  an  illegal  capture  ;  nor,  in  many 
cases,  afford  any  adequate  redress  for  the  wrong  ;  nor 
punish  the  aggressor.  It  would  be  powerless  and  palsied. 
It  could  not  perform,  or  compel  the  performance,  of  the 
duties  required  by  the  law  of  nations.  It  would  be  a 
sovereign,  without  any  solid  attribute  of  sovereignty  ;  and 
move  in  chains,  only  to  betray  its  own  imbecility.  Even 
under  the  Confederation,  the  power  to  decide  upon  ques¬ 
tions  of  capture  and  prize  was  exclusively  conferred,  in 
the  last  resort,  upon  the  National  court  of  appeals.  But, 
like  all  other  powers  conferred  by  that  instrument,  it  was 
totally  disregarded,  wherever  it  interfered  with  State 
policy,  or  with  extensive  popular  interests.  We  have 
seen,  that  the  sentences  of  the  National  prize  court  of 
appeals  were  treated  as  mere  nullities  ;  and  were  incapa¬ 
ble  of  being  enforced,  until  after  the  establishment  of  the 
present  Constitution.  The  same  reasoning,  which  con- 


196  CONSTITUTION  OF  THE  UNITED  STATES. 

ducts  us  to  the  conclusion,  that  the  National  courts  ought 
to  have  jurisdiction  of  this  class  of  admiralty  cases,  con¬ 
ducts  us  equally  to  the  conclusion,  that,  to  be  effectual 
for  the  administration  of  international  justice,  it  ought  to 
be  exclusive.  And,  accordingly,  it  has  been  constantly 
held,  that  this  jurisdiction  is  exclusive  in  the  courts  of 
the  United  States. 

§  327.  The  other  branch  of  admiralty  jurisdiction, 
dependent  upon  locality,  respects  civil  acts,  torts,  and 
injuries  done  on  the  sea,  or,  in  certain  cases,  on  waters 
of  the  sea,  where  the  tide  ebbs  and  flows,  without  any 
claim  of  exercising  the  rights  of  war.  Such  are  cases  of 
assaults,  and  other  personal  injuries  ;  cases  of  collision, 
or  running  of  ships  against  each  other  ;  cases  of  spoliation 
and  damage,  (as  they  are  technically  called,)  such  as  ille¬ 
gal  seizures,  or  depredations  upon  property  ;  cases  of 
illegal  dispossession,  or  withholding  possession  from  the 
owners  of  ships,  commonly  called  possessory  suits  ;  cases 
of  seizures  under  municipal  authority  for  supposed  breach¬ 
es  of  revenue,  or  other  prohibitory  laws  ;  and  cases  of 
salvage  for  meritorious  services  performed,  in  saving 
property,  whether  derelict,  or  wrecked,  or  captured,  or 
otherwise  in  imminent  hazard  from  extraordinary  perils. 

§  328.  It  is  obvious,  that  this  class  of  cases  has,  or 
may  have,  an  intimate  relation  to  the  rights  and  duties  of 
foreigners,  in  navigation  and  maritime  commerce.  It  may 
materially  affect  our  intercourse  with  foreign  states  ;  and 
may  raise  many  questions  of  international  law,  not  merely 
touching  private  claims,  but  national  sovereignty,  and 
national  reciprocity.  Thus,  for  instance,  if  a  collision 
should  take  place  at  sea  between  an  American  and  a  for¬ 
eign  ship,  many  important  questions  of  public  law  might 
be  connected  with  its  just  decision  ;  for  it  is  obvious,  that 
it  could  not  be  governed  by  the  mere  municipal  law  of 
either  country.  So,  if  a  case  of  recapture,  or  other 
salvage  service,  performed  to  a  foreign  ship,  should  occur, 
it  must  be  decided  by  the  general  principles  of  maritime 
law,  and  the  doctrines  of  national  reciprocity.  Where  a 
recapture  is  made  of  a  friendly  ship  from  the  hands  of  its 
enemy,  the  general  doctrine  now  established  is,  to  restore 


JURISDICTION  OF  THE  JUDICIARY. 


197 


it  upon  salvage,  if  the  foreign  country,  to  which  it  belongs, 
adopts  a  reciprocal  rule ;  or  to  condemn  it  to  the  recap¬ 
tors,  if  the  like  rule  is  adopted  in  the  foreign  country. 
And,  in  other  cases  of  salvage,  the  doctrines  of  internation¬ 
al  and  maritime  law  come  into  full  activity,  rather  than 
those  of  any  mere  municipal  code.  There  is,  therefore, 
a  peculiar  fitness  in  appropriating  this  class  of  cases  to 
the  National  tribunals  ;  since  they  will  be  more  likely  to 
be  there  decided  upon  large  and  comprehensive  princi¬ 
ples,  and  to  receive  a  more  uniform  adjudication  ;  and 
thus  to  become  more  satisfactory  to  foreigners. 

§  329.  The  remaining  class  respects  contracts,  claims, 
and  services  purely  maritime.  Among  these,  are  the  claims 
of  material-men  and  others,  for  repairs  and  outfits  of  ships 
belonging  to  foreign  nations,  or  to  other  States  ;  bottom¬ 
ry  bonds,  for  moneys  lent  on  ships  in  foreign  ports,  to 
relieve  their  distresses,  and  enable  them  to  complete  their 
voyages  ;  surveys  of  vessels  damaged  by  perils  of  the 
seas  ;  pilotage  on  the  high  seas  ;  and  suits  for  mariners’ 
wages.  These,  indeed,  often  arise  in  the  course  of  the 
commerce  and  navigation  of  the  United  States  ;  and 
seem  emphatically  to  belong,  as  incidents,  to  the  power 
to  regulate  commerce.  But  they  may  also  affect  the 
commerce  and  navigation  of  foreign  nations.  Repairs 
may  be  done,  and  supplies  be  furnished,  to  foreign  ships  ; 
money  may  be  lent  on  foreign  bottoms  ;  pilotage  and 
mariners’  wages  may  become  due  in  voyages  in  foreign 
employment  ;  and  in  such  cases,  the  general  maritime  law 
enables  the  courts  of  admiralty  to  administer  a  wholesome 
and  prompt  justice.  Indeed,  in  many  of  these  cases,  as 
the  courts  of  admiralty  entertain  suits  in  rem,  (that  is, 
upon  the  thing,)  as  well  as  in  personam ,  (that  is,  upon 
the  person,)  they  are  often  the  only  courts,  in  which  an 
effectual  redress  can  be  afforded,  especially  when  it  is 
desirable  to  enforce  a  specific  maritime  lien,  or  claim,  in 
the  nature  of  a  pledge. 

§  330.  So  that  we  see,  that  the  admiralty  jurisdiction 
naturally  connects  itself,  on  the  one  hand,  with  our  diplo¬ 
matic  relations  and  duties  to  foreign  nations,  and  their 
subjects  ;  and,  on  the  other  hand,  with  the  great  interests 

17* 


198  CONSTITUTION  OF  THE  UNITED  STATES. 

of  navigation  and  commerce,  foreign  and  domestic.  There 
is,  then,  a  peculiar  wisdom  in  giving  to  the  National  Govern¬ 
ment  a  jurisdiction  of  this  sort,  which  cannot  be  wielded, 
except  for  the  general  good  ;  and  which  multiplies  the 
securities  for  the  public  peace  abroad,  and  gives  to  com¬ 
merce  and  navigation  the  most  encouraging  support  at 
home.  It  may  be  added,  that,  in  many  of  the  cases 
included  in  these  latter  classes,  the  same  reasons  do  not 
exist,  as  in  cases  of  prize,  for  an  exclusive  jurisdiction  ; 
and,  therefore,  whenever  the  common  law  is  competent 
to  give  a  remedy  in  the  State  courts,  they  may  retain 
their  accustomed  concurrent  jurisdiction  in  the  adminis¬ 
tration  of  it. 

§  331.  We  have  been  thus  far  considering  the  admi¬ 
ralty  and  maritime  jurisdiction  in  civil  cases  only.  But  it 
also  embraces  all  public  offences,  committed  on  the  high 
seas,  and  in  creeks,  havens,  basins,  and  bays,  within  the 
ebb  and  flow  of  the  tide  ;  at  least,  in  such  as  are  out  of 
the  body  of  any  county  of  a  State.  In  these  places,  the 
jurisdiction  of  the  courts  of  admiralty  over  offences  is 
exclusive  ;  for  that  of  the  courts  of  common  law  is  limi¬ 
ted  to  such  offences,  as  are  committed  within  the  body  of 
some  county.  And  on  the  seacoast,  there  is  an  alter¬ 
nate,  or  divided  jurisdiction  of  the  courts  of  common  law, 
and  admiralty,  in  places  between  high  and  low  water 
mark  ;  the  former  having  jurisdiction  when,  and  as  far  as 
the  tide  is  out,  and  the  latter  when,  and  as  far  as  the  tide 
is  in,  or  to  high  water  mark.  This  criminal  jurisdiction 
of  the  admiralty  is  therefore  exclusively  vested  in  the 
National  Government  ;  and  may  be  exercised  over  such 
crimes  and  offences,  as  Congress  may,  from  time  to  time, 
delegate  to  the  cognizance  of  the  National  courts.  The 
propriety  of  vesting  this  criminal  jurisdiction  in  the  Nation¬ 
al  Government  depends  upon  the  same  reasoning,  and  is 
established  by  the  same  general  considerations,  as  have 
been  already  suggested  in  regard  to  civil  cases.  It  is 
essentially  connected  with  the  due  regulation,  and  pro¬ 
tection  of  our  commerce  and  navigation  on  the  high  seas, 
and  with  our  rights  and  duties  in  regard  to  foreign  nations, 
and  their  subjects,  in  the  exercise  of  common  sovereignty 


JURISDICTION  OF  THE  JUDICIARY. 


199 


on  the  ocean.  The  States,  as  such,  are  not  known  in  our 
intercourse  with  foreign  nations,  and  are  not  recognized 
as  common  sovereigns  on  the  ocean.  And  if  they  were 
permitted  to  exercise  criminal  or  civil  jurisdiction  there¬ 
on,  there  would  be  endless  embarrassments,  arising  from 
the  conflict  of  their  laws,  and  the  most  serious  dangers 
of  perpetual  controversies  with  foreign  nations.  In  short, 
the  peace  of  the  Union  would  be  constantly  put  at  hazard 
by  acts,  over  which  it  had  no  control  ;  and  by  assertions 
of  right,  which  it  might  wholly  disclaim. 

§  332.  The  next  clause  extends  the  judicial  power 
u  to  controversies,  to  which  the  United  States  shall  be  a 
party.”  It  scarcely  seems  possible  to  raise  a  reasonable 
doubt,  as  to  the  propriety  of  giving  to  the  National  courts 
jurisdiction  of  cases,  in  which  the  United  States  are  a 
party.  It  would  be  a  perfect  novelty  in  the  history  of 
national  jurisprudence,  as  well  as  of  public  law,  that  a 
sovereign  had  no  authority  to  sue  in  his  own  courts.  Un¬ 
less  this  power  were  given  to  the  United  States,  the  en¬ 
forcement  of  all  their  rights,  powers,  contracts,  and  privi¬ 
leges,  in  their  sovereign  capacity,  would  be  at  the  mercy 
of  the  States.  They  must  be  enforced,  if  at  all,  in  the 
State  tribunals.  And  there  would  not  only  not  be  any 
compulsory  power  over  those  courts  to  perform  such  func¬ 
tions  ;  but  there  would  not  be  any  means  of  producing 
uniformity  in  their  decisions.  A  sovereign,  without  the 
means  of  enforcing  civil  rights,  or  compelling  the  perfor¬ 
mance,  either  civilly  or  criminally,  of  public  duties,  on 
the  part  of  the  citizens,  would  be  a  most  extraordinary 
anomaly.  It  would  prostrate  the  Union  at  the  feet  of 
the  States.  It  would. compel  the  National  Government 
to  become  a  supplicant  for  justice  before  the  judicature  of 
those,  who  were  by  other  parts  of  the  Constitution  placed 
in  subordination  to  it. 

§  333.  The  next  clause  extends  the  judicial  power 
cc  to  controversies  between  two  or  more  States  ;  between 
a  State  and  the  citizens  of  another  State  ;  between  citi¬ 
zens  of  different  States,  claiming  lands  under  grants  of 
different  States  ;  and  between  a  State,  or  the  citizens 
thereof,  and  foreign  States,  citizens,  or  subjects.”  Of 


200  CONSTITUTION  OF  THE  UNITED  STATES. 


these,  we  will  speak  in  their  order.  And,  first,  u  Contro¬ 
versies  between  two  or  more  States.”  This  power  seems 
to  be  essential  to  the  preservation  of  the  peace  of  the 
Union.  History  gives  us  a  horrid  picture  of  the  dis¬ 
sensions  and  private  wars,  which  distracted  and  desolated 
Germany,  prior  to  the  institution  of  the  imperial  chamber 
by  Maximilian,  towards  the  close  of  the  fifteenth  century  ; 
and  informs  us,  at  the  same  time,  of  the  vast  influence  of 
that  institution,  in  appeasing  the  disorders,  and  establish¬ 
ing  the  tranquillity,  of  the  empire.  This  was  a  court  in¬ 
vested  with  authority  to  decide  finally  all  differences  among 
the  members  of  the  Germanic  body.  But  we  need  not 
go  for  illustrations  to  the  history  of  other  countries.  Our 
own  has  presented,  in  past  times,  abundant  proofs  of  the 
irritating  effects  resulting  from  territorial  disputes,  and  in¬ 
terfering  claims  of  boundary  between  the  States.  And 
there  are  yet  controversies  of  this  sort,  which  have  brought 
on  a  border  warfare,  at  once  dangerous  to  public  repose, 
and  incompatible  with  the  public  interests. 

§  334.  Under  the  Confederation,  authority  was  given 
to  the  National  Government,  to  hear  and  determine,  (in 
the  manner  pointed  out  in  the  article,)  in  the  last  resort, 
on  appeal,  all  disputes  and  differences  between  two  or 
more  States  concerning  boundary,  jurisdiction,  or  any 
other  cause  whatsoever.  Before  the  adoption  of  this  in¬ 
strument,  as  well  as  afterwards,  very  irritating  and  vexa¬ 
tious  controversies  existed  between  several  of  the  States, 
in  respect  to  soil,  jurisdiction,  and  boundary ;  and  threat¬ 
ened  the  most  serious  public  mischiefs.  Some  of  these 
controversies  were  heard  and  determined  by  the  court  of 
commissioners,  appointed  by  Congress.  But,  notwith¬ 
standing  these  adjudications,  the  conflict  was  maintained 
in  some  cases,  until  after  the  establishment  of  the  present 
Constitution. 

§  335.  Before  the  Revolution,  controversies  between 
the  colonies,  concerning  the  extent  of  their  rights  of  soil, 
territory,  jurisdiction,  and  boundary,  under  their  respec¬ 
tive  charters,  were  heard  and  determined  before  the  King 
in  council,  who  exercised  original  jurisdiction  therein, 
upon  the  principles  of  feudal  sovereignty.  This  jurisdic- 


JURISDICTION  OF  THE  JUDICIARY. 


201 


tion  was  often  practically  asserted,  as  in  the  case  of  the 
dispute  between  Massachusetts  and  New  Hampshire,  de¬ 
cided  by  the  Privy  Council,  in  1679  ;  and  in  the  case  of 
the  dispute  between  New  Hampshire  and  New  York,  in 
1764.  Lord  Hardwicke  recognised  this  appellate  juris¬ 
diction  in  the  most  deliberate  manner,  in  the  great  case  of 
William  Penny.  Lord  Baltimore.  The  same  necessity, 
which  gave  rise  to  it  in  our  colonial  state,  must  continue  to 
operate  through  all  future  time.  Some  tribunal,  exercis¬ 
ing  such  authority,  is  essential  to  prevent  an  appeal  to 
the  sword,  and  a  dissolution  of  the  government.  That  it 
ought  to  be  established  under  the  National,  rather  than 
under  the  State,  Government ;  or,  to  speak  more  properly, 
that  it  can  be  safely  established  under  the  former  only, 
would  seem  to  be  a  position  self-evident,  and  requiring  no 
reasoning  to  support  it.  It  may  justly  be  presumed,  that 
under  the  National  Government,  in  all  controversies  of  this 
sort,  the  decision  will  be  impartially  made,  according  to 
the  principles  of  justice  ;  and  all  the  usual  and  most  ef¬ 
fectual  precautions  are  taken  to  secure  this  impartiality, 
by  confiding  it  to  the  highest  judicial  tribunal. 

§  336.  Next  :  “  Controversies  between  a  State  and 
“  the  citizens  of  another  State.”  There  are  other  sourc¬ 
es,  besides  interfering  claims  of  boundary,  from  which 
bickerings  and  animosities  may  spring  up  among  the  mem¬ 
bers  of  the  Union.  The  past  experience  of  the  Country 
has  furnished  some  melancholy  instances  of  this  truth. 
Under  the  Confederation,  laws,  of  a  character  utterly  in¬ 
defensible  in  point  of  justice  and  principle,  were  passed  in 
some  of  the  States,  affecting  the  rights  of  citizens  of  other 
States.  And  though  the  Constitution  establishes  particu¬ 
lar  guards  against  the  repetition  of  those  instances,  which 
have  hitherto  made  their  appearance  ;  yet  it  is  warranta¬ 
ble  to  apprehend,  that  the  spirit,  which  produced  them, 
will  assume  new  shapes,  that  could  not  be  foreseen,  nor 
specifically  provided  against.  Whatever  practices  may 
have  a  tendency  to  distract  the  harmony  of  the  States,  are 
proper  objects  of  national  superintendence  and  control. 
It  may  be  esteemed  the  basis  of  the  Union,  that  c  the 
citizens  of  each  State  shall  be  entitled  to  all  the  privileges 


202  CONSTITUTION  OF  THE  UNITED  STATES. 

and  immunities  of  citizens  of  the  several  States.’  And 
if  it  be  a  just  principle,  that  every  government  ought  to 
possess  the  means  of  executing  its  own  provisions  by  its 
own  authority,  it  will  follow,  that,  in  order  to  the  inviola¬ 
ble  maintenance  of  that  equality  of  privileges  and  immuni¬ 
ties,  to  which  the  citizens  of  the  Union  will  be  entitled,  the 
National  Judiciary  ought  to  preside  in  all  cases,  in  which 
one  State,  or  its  citizens,  are  opposed  to  another  State, 
or  its  citizens.  To  secure  the  full  effect  of  so  fundamen¬ 
tal  a  provision  against  all  evasion  and  subterfuge,  it  is 
necessary,  that  its  interpretation  should  be  committed  to 
that  tribunal,  which,  having  no  local  attachments,  will  be 
likely  to  be  impartial  between  the  different  States  and 
their  citizens,  and  which,  owing  its  official  existence  to 
the  Union,  will  never  be  likely  to  feel  any  bias  inauspi¬ 
cious  to  the  principles,-  on  which  it  is  founded.  It  may  be 
added,  that  the  reasonableness  of  the  agency  of  the  Na¬ 
tional  courts  in  cases,  in  which  the  State  tribunals  cannot 
be  supposed  to  be  impartial,  speaks  for  it.  No  man 
ought  certainly  to  be  a  judge  in  his  own  cause,  or  in  any 
cause,  in  respect  to  which  he  has  the  least  interest  or 
bias.  This  principle  had  no  inconsiderable  weight  in 
designating  the  national  courts,  as  the  proper  tribunals  for 
the  determination  of  controversies  between  different  States 
and  their  citizens. 

§  337.  And  here  a  most  important  question  of  a  con¬ 
stitutional  nature  was  formerly  litigated  ;  and  that  is,  wheth¬ 
er  the  jurisdiction,  given  by  the  Constitution,  in  cases, 
in  which  a  State  is  a  party,  extended  to  suits  brought 
against  a  State,  as  well  as  by  it,  or  was  exclusively  con¬ 
fined  to  the  latter.  It  is  obvious,  that,  if  a  suit  could  be 
brought,  by  any  citizen  of  one  State  against  another  State, 
upon  any  contract,  or  matter  of  property,  the  State  would 
be  constantly  subjected  to  judicial  action,  to  enforce  pri¬ 
vate  rights  against  it  in  its  sovereign  capacity.  Accord¬ 
ingly,  at  a  very  early  period,  numerous  suits  were  brought 
against  particular  States  by  their  creditors,  to  enforce  the 
payment  of  debts,  or  other  claims.  The  question  was 
made,  and  most  elaborately  considered,  in  the  celebrated 
case  of  Chisholm  v.  Georgia  ;  and  the  majority  of  the 


JURISDICTION  OF  THE  JUDICIARY. 


203 


Supreme  Court  held,  that  the  judicial  power,  under  the 
Constitution,  applied  equally  to  suits  brought  and  suits 
brought  against  a  State.  All  the  learned  judges,  on  that 
occasion,  delivered  opinions,  containing  the  grounds  of 
their  respective  judgements.  It  is  not  my  intention  to  go 
over  these  grounds,  although  they  are  stated  with  great 
ability  and  legal  learning,  and  exhibit  a  very  thorough 
mastery  of  the  whole  subject.  The  decision  created 
general  alarm  among  the  States  ;  and  an  amendment  was 
proposed,  and  ratified  by  the  States,  by  which  the  pow¬ 
er  was  entirely  taken  away,  so  far  as  it  regards  suits 
brought  against  a  State.  It  is  in  the  following  words  : 
u  The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law,  or  equity,  com¬ 
menced  or  prosecuted  against  one  of  the  United  States, 
by  citizens  of  another  State,  or  by  citizens,  or  subjects 
of  any  foreign  State.”  This  amendment  was  construed 
to  include  suits  then  pending,  as  well  as  suits  to  be  com¬ 
menced  thereafter  ;  and,  accordingly,  all  the  suits  then 
pending  were  dismissed,  without  any  further  adjudication. 

§  338.  Since  this  amendment  has  been  made,  a  ques¬ 
tion  of  equal  importance  has  arisen  ;  and  that  is,  whether 
the  amendment  applies  to  original  suits  only,  brought 
against  a  State,  leaving  the  appellate  jurisdiction  of  the 
Supreme  Court  in  its  full  vigor  over  all  constitutional 
questions,  arising  in  the  progress  of  any  suit  brought  by  a 
State,  in  any  State  court,  against  any  private  citizen  or 
alien.  But  this  question  will  more  properly  come  under 
review,  when  we  are  considering  the  nature  and  extent 
of  the  appellate  jurisdiction  of  the  Supreme  Court.  At 
present,  it  is  only  necessary  to  state,  that  it  has  been  sol¬ 
emnly  adjudged,  that  the  amendment  applies  only  to  orig¬ 
inal  suits  against  a  State  ;  and  does  not  touch  the  appel¬ 
late  jurisdiction  of  the  Supreme  Court  to  re-examine,  on 
an  appeal  or  writ  of  error,  a  judgement  or  decree  render¬ 
ed  in  any  State  court,  in  a  suit  brought  originally  by  a 
State  against  any  private  person. 

§  339.  Another  inquiry,  suggested  by  the  original 
clause,  as  well  as  by  the  amendment,  is,  when  a  State  is 
properly  to  be  deemed  a  party  to  a  suit,  so  as  to  avail 


204  CONSTITUTION  OF  THE  UNITED  STATES. 

itself  of,  or  to  exempt  itself  from,  the  operation  of  the 
jurisdiction  conferred  by  the  Constitution.  To  such  an 
inquiry,  the  proper  answer  is,  that  a  State,  in  the  sense 
of  the  Constitution,  is  a  party  only,  when  it  is  on  the  rec¬ 
ord  as  such  ;  and  it  sues,  or  is  sued  in  its  political  capaci¬ 
ty.  It  is  not  sufficient,  that  it  may  have  an  interest  in  a 
suit  between  other  persons,  or  that  its  rights,  powers,  priv¬ 
ileges,  or  duties,  may  come  therein  incidentally  in  ques¬ 
tion.  It  must  be  in  terms  a  plaintiff  or  defendant,  so  that 
the  judgement,  or  decree,  may  be  binding  upon  it,  as  it  is 
in  common  suits,  binding  upon  parties  and  privies.  The 
point  arose  in  an  early  stage  of  the  government,  in  a  suit 
between  private  persons,  where  one  party  asserted  the 
land  in  controversy  to  be  in  Connecticut,  and  the  other 
in  New  York  ;  and  the  court  held,  that  neither  State 
could  be  considered  as  a  party.  It  has  been  again  dis¬ 
cussed  in  some  late  cases  ;  and  the  doctrine  now  firmly 
established  is,  that  a  State  is  not  a  party  in  the  sense  of 
the  Constitution,  unless  it  appears  on  the  record,  as  such, 
either  as  plaintiff  or  defendant.  It  is  not  sufficient,  that 
it  may  have  an  interest  in  the  cause,  or  that  the  parties 
before  the  Court  are  sued  for  acts  done,  as  agents  of  the 
State.  In  short,  the  very  immunity  of  a  State  from  be¬ 
ing  made  a  party,  constitutes,  or  may  constitute,  a  solid 
ground,  why  the  suit  should  be  maintained  against  other 
parties,  who  act  as  its  agents,  or  claim  under  its  title  ; 
although  otherwise,  as  the  principal,  it  might  be  fit,  that 
the  State  should  be  made  a  party  upon  the  common 
principles  of  a  court  of  equity. 

§  340.  The  same  principle  applies  to  cases,  where  a 
State  has  an  interest  in  a  corporation  ;  as,  when  it  is  a 
stockholder  in  an  incorporated  bank,  tbe  corporation  is 
still  suable,  although  the  State,  as  such,  is  exempted 
from  any  action.  The  State  does  not,  by  becoming  a 
corporator,  identify  itself  with  the  corporation.  The 
bank,  in  such  a  case,  is  not  the  State,  although  the  State 
holds  an  interest  in  it.  Nor  will  it  make  any' difference 
in  the  case,  that  the  State  has  the  sole  interest  in  the  cor¬ 
poration,  if  in  fact  it  creates  other  persons  corporators. 
An  analogous  case  will  be  found  in  the  authority,  given 


JURISDICTION  OF  THE  JUDICIARY. 


205 


by  an  act  of  Congress  to  the  postmaster-general,  to  bring 
suits  in  his  official  capacity.  In  such  suits,  the  United 
States  are  not  understood  to  be  a  party,  although  the 
suits  solely  regard  their  interests.  The  postmaster-gener¬ 
al  does  not,  in  such  cases,  sue  under  the  clause  giving  ju¬ 
risdiction,  u  in  controversies,  to  which  the  United  States 
shall  be  a  party  ;”  but  under  the  clause  extending  the  juris¬ 
diction  to  cases  arising  under  the  laws  of  the  United  States. 

§  341.  It  may,  then,  be  laid  down,  as  a  rule,  which 
admits  of  no  exception,  that,  in  all  cases  under  the  Con¬ 
stitution  of  the  United  States,  where  jurisdiction  depends 
upon  the  party,  it  is  the  party  named  on  the  record. 
Consequently  the  amendment,  above  referred  to,  which 
restrains  the  jurisdiction  granted  by  the  Constitution  over 
suits  against  States,  is  of  necessity  limited  to  those  suits,  in 
which  a  State  is  a  party  on  the  record.  The  amendment 
has  its  full  effect,  if  the  Constitution  is  construed,  as  it 
would  have  been  construed,  had  the  jurisdiction  never 
been  extended  to  suits  brought  against  a  State  by  the 
citizens  of  another  State,  or  by  aliens. 

§  342.  Next:  ct  Controversies  between  citizens  of 
different  States.”  Although  the  necessity  of  this  power 
may  not  stand  upon  grounds  quite  as  strong,  as  some  of 
the  preceding,  there  are  high  motives  of  state  policy  and 
public  justice,  by  which  it  can  be  clearly  vindicated. 
There  are  many  cases,  in  which  such  a  power  may  be 
indispensable,  or  in  the  highest  degree  expedient,  to  carry 
into  effect  some  of  the  privileges  and  immunities  con¬ 
ferred,  and  some  of  the  prohibitions  upon  States  expressly 
declared,  in  the  Constitution.  For  example  :  It  is  de¬ 
clared,  that  u  the  citizens  of  each  State  shall  be  entitled  to 
all  the  privileges  and  immunities  of  citizens  of  the  several 
States.”  Suppose  an  attempt  is  made  to  evade,  or  with¬ 
hold  these  privileges  and  immunities,  would  it  not  be 
right  to  allow  the  party  aggrieved  an  opportunity  of  claim¬ 
ing  them,  in  a  contest  with  a  citizen  ol  the  State,  before 
a  tribunal,  at  once  national  and  impartial  ?  Suppose  a 
State  should  pass  a  tender  law,  or  law  impairing  the  obli¬ 
gation  of  private  contracts,  or  should,  in  the  course  of  its 
legislation,  grant  unconstitutional  preferences  to  its  own 

IS  xiii. 


206  CONSTITUTION  OF  THE  UNITED  STATES. 

citizens,  is  it  not  clear,  that  the  jurisdiction  to  enforce  the 
obligations  of  the  Constitution,  in  such  cases,  ought  to  be 
confided  to  the  national  tribunals  ?  These  cases  are  not 
purely  imaginary.  They  have  actually  occurred  ;  and  may 
again  occur,  under  peculiar  circumstances,  in  the  course 
of  State  legislation.  What  was  the  fact  under  the  Con¬ 
federation  ?  Each  State  was  obliged  to  acquiesce  in  the 
degree  of  justice,  which  another  State  might  choose  to 
yield  to  its  citizens.  There  was  not  only  danger  of  ani¬ 
mosities  growing  up  from  this  source  ;  but,  in  point  of 
fact,  there  did  grow  up  retaliatory  legislation,  to  meet 
such  real  or  imagined  grievances. 

§  343.  Nothing  can  conduce  more  to  general  harmony 
and  confidence  among  all  the  States,  than  a  conscious¬ 
ness,  that  controversies  are  not  exclusively  to  be  decided 
by  the  State  tribunals  ;  but  may,  at.  the  election  of  the 
party,  be  brought  before  the  National  tribunals.  Besides  ; 
it  cannot '"escape  observation,  that  the  judges  in  different 
States  hold  their  offices  by  a  very  different  tenure.  Some 
hold  during  good  behavior  ;  some  for  a  term  of  years  ; 
some  for  a  single  year  ;  some  are  irremovable,  except 
upon  impeachment  ;  and  others  may  be  removed  upon 
address  of  the  Legislature.  Under  such  circumstances,  it 
cannot  but  be  presumed,  that  there  may  arise  a  course 
of  State  policy,  or  State  legislation,  exceedingly  injurious 
to  the  interests  of  the  citizens  of  other  States,  both  as  to 
real  and  to  personal  property.  It  would  require  an  un¬ 
common  exercise  of  candor  or  credulity  to  affirm,  that,  in 
cases  of  this  sort,  all  the  State  tribunals  would  be  whollv 
without  State  prejudice,  or  State  feelings  ;  or,  that  they 
would  be  as  earnest  in  resisting  the  encroachments  of 
State  authority  upon  the  just  rights,  and  interests  of  the 
citizens  of  other  States,  as  a  tribunal  differently  consti¬ 
tuted,  and  wholly  independent  of  State  authority.  And, 
if  justice  should  be  as  fairly  and  as  firmly  administered  in 
the  former,  as  in  the  latter,  still  the  mischiefs  would  be 
most  serious,  if  the  public  opinion  did  not  indulge  such  a 
belief.  Justice,  in  cases  of  this  sort,  should  not  only  be 
above  all  reproach,  but  above  all  suspicion.  The  sources 
of  State  irritations  and  State  jealousies  are  sufficiently 


JURISDICTION  OF  THE  JUDICIARY. 


207 


numerous,  without  leaving  open  one  so  copious  and  con¬ 
stant,  as  the  belief,  or  the  dread,  of  wrong  in  the  adminis¬ 
tration  of  State  justice.  Besides  ;  if  the  public  confidence 
should  continue  to  follow  the  State  tribunals,  (as  in  many 
cases  it  doubtless  will,)  the  provision  will  become  inert 
and  harmless  ;  for,  as  the  party  will  have  his  election  of 
the  forum,  he  will  not  be  inclined  to  desert  the  State 
courts,  unless  for  some  sound  reason,  founded  either  in 
the  nature  of  his  cause,  or  in  the  influence  of  State  pre¬ 
judices.  On  the  other  hand,  there  can  be  no  real  danger 
of  injustice  to  the  other  side  in  the  decisions  of  the  Na¬ 
tional  tribunals  ;  because  the  cause  must  still  be  decided 
upon  the  true  principles  of  the  local  law,  and  not  by  any 
foreign  jurisprudence.  There  is  another  circumstance  of 
no  small  importance,  as  a  matter  of  policy ;  and  that  is, 
the  tendency  of  such  a  power  to  increase  the  confidence 
and  credit  between  the  commercial  and  agricultural  States. 
No  man  can  be  insensible  to  the  value,  in  promoting  credit, 
of  the  belief  of  there  being  a  prompt,  efficient,  and  impar¬ 
tial  administration  of  justice  in  enforcing  contracts. 

§  344.  The  next  inquiry,  growing  out  of  this  part  of 
the  clause,  is,  who  are  to  be  deemed  citizens  of  different 
States,  within  the  meaning  of  it.  Are  all  persons  born 
within  a  State  to  be  always  deemed  citizens  of  that  State, 
notwithstanding  any  change  of  domicil  ?  Or  does  their 
citizenship  change  with  their  change  of  domicil  ?  The 
answer  to  this  inquiry  is  equally  plain  and  satisfactory. 
The  Constitution  having  declared,  that  the  citizens  of 
each  State  shall  be  entitled  to  all  privileges  and  immu¬ 
nities  of  citizens  in  the  several  States,  every  person,  who 
is  a  citizen  of  one  State,  and  removes  into  another,  with 
the  intention  of  taking  up  his  residence  and  inhabitancy 
there,  becomes  ipso  facto  a  citizen  of  the  State,  where 
he  resides  ;  and  he-  then  ceases  to  be  a  citizen  of  the 
State,  from  which  he  has  removed  his  residence.  Of 
course,  when  he  gives  up  his  new  residence,  or  domicil, 
and  returns  to  his  native,  or  other  State  residence  or  dom¬ 
icil,  he  reacquires  the  character  of  the  latter.  What  cir¬ 
cumstances  shall  constitute  such  a  change  of  residence  or 
domicil,  is  an  inquiry,  more  properly  belonging  to  a  trea- 


203  CONSTITUTION  OF  THE  UNITED  STATES. 

tise  upon  public  or  municipal  law,  than  to  commentaries 
upon  constitutional  law.  In  general,  however,  it  may  be 
said,  that  a  removal  from  one  State  into  another,  with  an 
intention  of  residence,  or  with  a  design  of  becoming  an  in¬ 
habitant,  constitutes  a  change  of  domicil,  and  of  course  a 
change  of  citizenship.  But  a  person,  who  is  a  native  citi¬ 
zen  of  one  State,  never  ceases  to  be  a  citizen  thereof,  until 
he  has  acquired  a  new  citizenship  elswhere.  Residence  in 
a  foreign  country  has  no  operation  upon  his  character,  as 
a  citizen,  although  it  may,  for  purposes  of  trade  and  com¬ 
merce,  impress  him  with  the  character  of  the  country. 
To  change  allegiance  is  one  thing  ;  to  change  inhabitancy 
is  quite  another  thing.  The  right  and  the  power  are  not 
coextensive  in  each  case.  Every  citizen  of  a  State  is 
ipso  facto  a  citizen  of  the  United  States. 

§  345.  And  a  person,  who  is  a  naturalized  citizen  of 
the  United  States,  by  a  like  residence  in  any  State  in  the 
Union,  becomes  ipso  facto  a  citizen  of  that  State.  So  a 
citizen  of  a  Territory  of  the  Union,  by  a  like  residence, 
acquires  the  character  of  the  State,  where  he  resides. 
But  a  naturalized  citizen  of  the  United  States,  or  a  citizen 
of  a  Territory,  is  not  a  citizen  of  a  State,  entitled  to  sue 
in  the  courts  of  the  United  States,  in  virtue  of  that  char¬ 
acter,  while  he  resides  in  any  such  Territory,  nor  until  he 
has  acquired  a  residence  or  domicil  in  the  particular  State. 

§  346.  A  corporation,  as  such,  is  not  a  citizen  of  a 
State,  in  the  sense  of  the  Constitution.  But,  if  all  the 
members  of  the  corporation  are  citizens,  their  character 
will  confer  jurisdiction  ;  for  then  it  is  substantially  a  suit 
by  citizens,  suing  in  their  corporate  name.  And  a  citizen 
of  a  State  is  entitled  to  sue,  as  such,  notwithstanding  he 
is  a  trustee  for  others,  or  sues  in  autre  droit ,  as  it  is 
technically  called,  that  is,  as  representative  of  another. 
Thus,  a  citizen  may  sue,  who  is  a  trustee  at  law,  for  the 
benefit  of  the  person  entitled  to  the  trust.  And  an  ad¬ 
ministrator,  and  an  executor,  may  sue  for  the  benefit  of  the 
estate,  which  they  represent ;  for,  in  each  of  these  cases, 
it  is  their  personal  suit.  But  if  citizens,  who  are  parties 
to  a  suit,  are  merely  nominally  so  ;  as,  for  instance,  if  ma¬ 
gistrates  are  officially  required  to  allow  suits  to  be  brought 


JURISDICTION  OF  THE  JUDICIARY. 


209 


in  their  names  for  the  use  or  benefit  of  a  citizen  or  alien, 
the  latter  are  deemed  the  substantial  parties  entitled  to 
sue. 

§  347.  Next:  a  Controversies  between  citizens  of 
the  same  State,  claiming  lands  under  grants  of  different 
States.”  This  clause  was  not  in  the  first  draft  of  the 
Constitution,  but  was  added  without  an}'  known  objection 
to  its  propriety.  It  is  the  only  instance,  in  which  the 
Constitution  directly  contemplates  the  cognizance  of  dis¬ 
putes  between  citizens  of  the  same  State  ;  but  certainly 
not  the  only  one,  in  which  they  may  indirectly,  upon  Con¬ 
stitutional  questions,  have  the  benefit  of  the  judicial  power 
of  the  Union.  It  has  been  already  remarked,  that  the  rea¬ 
sonableness  of  the  agency  of  the  National  courts,  in  cases 
in  which  the  State  tribunals  cannot  be  supposed  to  be  im¬ 
partial,  speaks  for  itself.  No  man  ought  certainly  to  be 
a  judge  in  his  own  cause,  or  in  any  cause,  in  respect  to 
which  he  has  the  least  interest  or  bias.  This  principle 
has  no  inconsiderable  weight  in  designating  the  National 
courts,  as  the  proper  tribunals  for  the  determination  of 
controversies  between  different  States  and  their  citizens. 
And  it  ought  to  have  the  same  operation,  in  regard  to  some 
cases  between  citizens  of  the  same  State.  Claims  to  land 
under  grants  of  different  States,  founded  upon  adverse 
pretensions  of  boundary,  are  of  this  description.  The 
courts  of  neither  of  the  granting  States  could  be  expected 
to  be  unbiassed.  The  laws  may  even  have  prejudged 
the  question,  and  tied  the  courts  down  to  decisions  in 
favor  of  the  grants  of  the  State,  to  which  they  belonged. 
Where  this  has  not  been  done,  it  would  be  natural, 
that  the  judges,  as  men,  should  feel  a  strong  predilection 
for  the  claims  of  their  own  government.  And,  at  all 
events,  the  providing  of  a  tribunal,  having  no  possible  in¬ 
terest  on  the  one  side,  more  than  the  other,  would  have 
a  most  salutary  tendency  in  quieting  the  jealousies,  and 
disarming  the  resentments  of  the  State,  whose  grant  should 
be  held  invalid.  This  jurisdiction  attaches  not  only  to 
grants  made  by  different  States,  which  were  never  united  ; 
but  also  to  grants  made  by  different  States,  which  were 
originally  united  under  one  jurisdiction,  if  made  since  the 

18* 


210  CONSTITUTION  OF  THE  UNITED  STATES. 

separation,  although  the  origin  of  the  title  may  be  traced 
back  to  an  antecedent  period. 

§  348.  Next :  u  Controversies  between  a  State,  or  the 
citizens  thereof,  and  foreign  states,  citizens,  or  subjects.” 
This  provision  has  been  vindicated  in  the  following  brief, 
but  powerful  manner.  The  peace  of  the  whole  ought 
not  to  be  left  at  the  disposal  of  a  part.  The  Union  will 
undoubtedly  be  answerable  to  foreign  powers  for  the  con¬ 
duct  of  its  members.  And  the  responsibility  for  an  injury 
ought  ever  to  be  accompanied  with  the  faculty  of  pre¬ 
venting  it.  As  the  denial  or  perversion  of  justice,  by  the 
sentences  of  courts,  is  with  reason  classed  among  the  just 
causes  of  war,  it  will  follow,  that  the  National  Judiciary 
ought  to  have  cognizance  of  all  causes,  in  which  the  citi¬ 
zens  of  other  countries  are  concerned.  This  is  not  less 
essential  to  the  preservation  of  the  public  faith,  than  to 
the  security  of  the  public  tranquillity.  A  distinction  may 
perhaps  be  imagined  between  cases  arising  upon  treaties 
and  the  laws  of  nations,  and  those,  which  may  stand  merely 
on  the  footing  of  the  ijjpnicipal  law.  The  former  kind 
may  be  supposed  proper  for  the  National  jurisdiction  ;  the 
latter  for  that  of  the  States.  But  it  is  at  least  problemat¬ 
ical,  whether  an  unjust  sentence  against  a  foreigner,  where 
the  subject  of  controversy  was  wholly  relative  to  the  lex 
loci ,  as  it  is  called,  that  is,  to  the  local  law,  would  not,  if 
unredressed,  be  an  aggression  upon  his  sovereign,  as  well 
as  one,  which  violated  the  stipulations  of  a  treaty,  or  the 
general  law  of  nations.  And  a  still  greater  objection  to 
the  distinction  would  result  from  the  immense  difficulty,  if 
not  impossibility,  of  a  practical  discrimination  between  the 
cases  of  one  complexion,  and  those  of  the  other.  So 
great  a  proportion  of  the  controversies,  in  which  foreign¬ 
ers  are  parties,  involve  national  questions,  that  it  is  by  far 
the  most  safe,  and  most  expedient,  to  refer  all  those,  in 
which  they  are  concerned,  to  the  National  tribunals. 

§  349.  In  addition  to  these  suggestions,  it  may  be  re¬ 
marked,  that  it  is  of  great  national  importance  to  advance 
public,  as  well  as  private  credit,  in  our  intercourse  with 
loreign  nations  and  their  subjects.  Nothing  can  be  more 
beneficial  in  this  respect,  than  to  create  an  impartial  tri- 


JURISDICTION  OF  THE  JUDICIARY. 


211 


bunal,  to  which  they  may  have  resort  upon  all  occasions, 
when  it  may  be  necessary  to  ascertain,  or  enforce  their 
rights.  Besides  ;  it  is  not  wholly  immaterial,  that  the  law, 
to  be  administered  in  cases  of  foreigners,  is  often  very  dis¬ 
tinct  from  the  mere  municipal  code  of  a  State,  and  de¬ 
pendent  upon  the  law  merchant,  or  the  more  enlarged 
consideration  of  international  rights  and  duties,  in  a  case 
of  conflict  of  the  foreign  and  domestic  laws.  And  it  may 
fairly  be  presumed,  that  the  National  tribunals  will,  from, 
the  nature  of  their  ordinary  functions,  become  better  ac¬ 
quainted  with  the  general  principles,  which  regulate  sub¬ 
jects  of  this  nature,  than  other  courts,  however  enlighten¬ 
ed,  which  are  rarely  required  to  discuss  them. 

§  350.  In  regard  to  controversies  between  an  American 
state  and  a  foreign  state,  it  is  obvious,  that  the  suit  must, 
on  one  side  at  least,  be  wholly  voluntary.  No  foreign 
state  can  be  compelled  to  become  a  party,  plaintiff  or  de¬ 
fendant,  in  any  of  our  tribunals.  If,  therefore,  it  chooses 
to  consent  to  the  institution  of  any  suit,  it  is  its  consent 
alone,  which  can  give  effect  to  the  jurisdiction  of  the 
court.  It  is  certainly  desirable,  to  furnish  some  peaceable 
mode  of  appeal  in  cases,  where  any  controversy  may  exist 
between  an  American  state  and  a  foreign  state,  sufficiently 
important  to  require  the  grievance  to  be  redressed  by  any 
other  mode,  than  through  the  instrumentality  of  negotia¬ 
tions. 

§  351.  The  inquiry  may  here  be  made,  who  are  to  be 
deemed  aliens,  entitled  to  sue  in  the  courts  of  the  United 
States.  The  general  answer  is,  any  person,  who  is  not 
a  citizen  of  the  United  States.  A  foreigner,  wrho  is  nat¬ 
uralized,  is  no  longer  entitled  to  the  character  of  an  alien. 
And  when  an  alien  is  the  substantial  party,  it  matters  not, 
whether  he  is  a  suitor  in  his  own  right  ;  or  whether  he 
acts,  as  a  trustee,  or  a  personal  representative  ;  or  whether 
he  is  compellable,  by  the  local  law,  to  sue  through  some 
official  organ.  A  foreign  corporation,  established  in  a 
foreign  country,  all  of  whose  members  are  aliens,  is  en¬ 
titled  to  sue  in  the  same  manner,  that  an.  alien  may  per¬ 
sonally  sue  in  the  courts  of  the  Union.  It  is  not  suffi¬ 
cient  to  vest  the  jurisdiction,  that  an  alien  is  a  party  to 


212  CONSTITUTION  OF  THE  UNITED  STATES. 

the  suit,  unless  the  other  party  be  a  citizen.  British  sub¬ 
jects,  born  before  the  American  Revolution,  are  to  be 
deemed  aliens  ;  and  may  sue  American  citizens,  born  be¬ 
fore  the  Revolution,  as  well  as  those  born  since  that  pe¬ 
riod.  The  Revolution  severed  the  ties  of  allegiance  ;  and 
made  the  inhabitants  of  each  country  aliens  to  each  other. 
In  relation  to  aliens,  however,  it  should  be  stated,  that 
they  have  a  right  to  sue  only,  while  peace  exists  between 
their  country  and  our  own.  For,  if  a  war  break  out,  and 
they  thereby  become  alien'  enemies,  their  right  to  sue  is 
suspended,  until  the  return  of  peace. 

§  352.  We  have  now  finished  our  review  of  all  the 
classes  of  cases,  to  which  the  judicial  power  of  the  United 
States  extends  ;  and  this  review  will  (we  trust)  amply 
establish  the  reasonableness,  the  sound  policy,  and  in  many 
cases,  the  indispensable  necessity,  of  confining  this  juris¬ 
diction  on  the  National  Government.  The  next  inquiry 
naturally  presented,  is  in  what  mode  this  jurisdiction  is  to 
be  exercised,  and  in  what  courts  it  is  to  be  vested.  The 
next  clause  of  the  third  article,  answers  the  inquiry.  It 
is  as  follows  :  “  In  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls,  and  those,  in  which  a  State 
shall  be  a  party,  the  Supreme  Court  shall  have  original 
jurisdiction.  In  all  the  other  cases  before  mentioned,  the 
Supreme  Court  shall  have  appellate  jurisdiction,  both  as 
to  law  and  fact,  with  such  exceptions,  and  under  such 
regulations,  as  the  Congress  shall  make.” 

§  353.  By  original  jurisdiction,  is  here  meant,  that  the 
party  may  commence  his  suit  directly,  and  in  the  first  in¬ 
stance,  in  the  Supreme  Court  ;  by  appellate  jurisdiction 
is  meant,  a  right  to  revise  the  decision  or  judgement, 
made  by  some  other  court,  in  which  the  suit  has  been  in¬ 
stituted.  For  reasons  of  the  highest  public  policy,  original 
jurisdiction  is  given  to  the  Supreme  Court  in  cases,  in 
which  foreign  nations  and  the  States  are  concerned,  as 
more  appropriate  to  their  dignity,  and,  under  all  circum¬ 
stances,  more  fit  to  receive  the  decision  of  the  highest 
tribunals.  Othe;*  cases  may  conveniently  be  left  to  the 
inferior  tribunals,  and  be  brought  by  appeal  for  revision 
before  the  Supreme  Court,  if  either  party  should  require 


JURISDICTION  OF  THE  JUDICIARY. 


213 


it,  leaving  to  Congress  the  authority  to  regulate  the  right 
of  appeal,  in  the  exercise  of  a  sound  discretion. 

§  354.  There  are  some  additional  suggestions  upon  this 
clause,  which  may,  perhaps,  be  useful  to  that  class  of  read¬ 
ers  who  desire  to  comprehend  the  full  force  and  opera¬ 
tion  of  this  clause,  in  its  various  practical  bearings.* 

§  355.  The  first  remark,  arising  out  of  this  clause,  is, 
that,  as  the  judicial  power  of  the  United  States  extends 
to  all  the  cases  enumerated  in  the  Constitution,  it  may  ex¬ 
tend  to  all  such  cases,  in  any  form,  in  which  judicial  power 
may  be  exercised.  It  may,  therefore,  extend  to  them  in 
the  shape  of  original,  or  of  appellate  jurisdiction,  or  of 
both  ;  for  there  is  nothing  in  the  nature  of  the  cases, 
which  binds  to  the  exercise  of  the  one  in  preference  to  the 
other.  But  it  is  clear,  from  the  language  of  the  Consti¬ 
tution,  that,  in  one  form  or  the  other,  it  is  absolutely  obli¬ 
gatory  upon  Congress,  to  vest  all  the  jurisdiction  in  the 
National  courts,  in  that  class  of  cases,  at  least,  where  it 
lias  declared,  that  it  shall  extend  to  u  all  cases.” 

§  356.  In  the  next  place,  the  jurisdiction,  which  is 
by  the  Constitution  to  be  exercised  by  the  Supreme  Court 
in  an  original  form,  is  very  limited,  and  extends  only  to 
cases  affecting  ambassadors,  and  other  public  ministers, 
and  consuls,  and  cases,  where  a  State  is  a  party.  And 
Congress  cannot  constitutionally  confer  on  it  any  other,  or 
further  original  jurisdiction.  This  is  one  of  the  appropri¬ 
ate  illustrations  of  the  rule,  that  the  affirmation  of  a  power 
in  particular  cases,  excludes  it  in  all  others.  The  clause 
itself  would  otherwise  be  wholly  inoperative  and  nugatory. 
If  it  had  been  intended  to  leave  it  to  the  discretion  of  Con¬ 
gress,  to  apportion  the  judicial  power  between  the  Su¬ 
preme  and  inferior  courts,  according  to  the  will  of  that 
body,  it  would  have  been  useless  to  have  proceeded  fur¬ 
ther,  than  to  define  the  judicial  power,  and  the  tribunals, 
in  which  it  should  be  vested.  Affirmative  words  often, 
in  their  operation,  imply  a  negative  of  other  objects,  than 
those  affirmed  ;  and  in  this  case,  a  negative,  or  exclusive 
sense,  must  be  given  to  the  wrords,  or  they  have  no  oper- 

*  The  following  sections  of  this  chapter  can  be  omitted  by  those, 
whose  studies  may  not  enable  them  fully  to  understand  this  compli¬ 
cated  subject. 


214  CONSTITUTION  OF  THE  UNITED  STATES. 

ation  at  all.  If  the  solicitude  of  the  Convention,  respect¬ 
ing  our  peace  with  foreign  powers,  might  induce  a  provis¬ 
ion  to  be  made,  that  the  Supreme  Court  should  have 
original  jurisdiction  in  cases,  which  might  be  supposed  to 
affect  them  ;  yet  the  clause  would  have  proceeded  no  fur¬ 
ther,  than  to  provide  for  such  cases,  unless  some  further  re¬ 
striction  upon  the  powers  of  Congress  had  been  intended. 
The  direction,  that  the  Supreme  Court  shall  have  appel¬ 
late  jurisdiction,  in  all  cases,  with  such  exceptions,  as  Con¬ 
gress  shall  make,  will  be  no  restriction,  unless  the  words 
are  to  be  deemed  exclusive  of  original  jurisdiction.  And 
accordingly,  the  doctrine  is  firmly  established,  that  the 
Supreme  Court  cannot  constitutionally  exercise  any  orig¬ 
inal  jurisdiction,  except  in  the  enumerated  cases.  If  Con¬ 
gress  should  confer  it,  it  would  be  a  mere  nullity. 

§  357.  But,  although  the  Supreme  Court  cannot  ex¬ 
ercise  original  jurisdiction,  in  any  cases,  except  those 
specially  enumerated,  it  is  certainly  competent  for  Con¬ 
gress  to  vest,  in  any  inferior  courts  of  the  United  States, 
original  jurisdiction  of  all  other  cases,  not  thus  specially 
assigned  to  the  Supreme  Court  ;  for  there  is  nothing  in 
the  Constitution,  which  excludes  such  inferior  courts  from 
the  exercise  of  such  original  jurisdiction.  Original  juris¬ 
diction,  so  far  as  the  Constitution  gives  a  rule,  is  coexten¬ 
sive  with  the  judicial  power  ;  and  except,  so  far  as  the 
Constitution  has  made  any  distribution  of  it  among  the 
courts  of  the  United  States,  it  remains  to  be  exercised  in 
an  original,  or  an  appellate  form,  or  in  both,  as  Congress 
may,  in  their  wisdom,  deem  fit.  Now,  the  Constitution  has 
made  no  distribution,  except  of  the  original  and  appellate 
jurisdiction  of  the  Supreme  Court.  It  has  nowhere  in¬ 
sinuated,  that  the  inferior  tribunals  shall  have  no  original 
jurisdiction.  It  has  nowhere  affirmed,  that  they  shall  have 
appellate  jurisdiction.  Both  are  left  unrestricted  and  un¬ 
defined.  Of  course,  as  the  judicial  power  is  to  be  vested 
in  the  Supreme  and  inferior  courts  of  the  Union,  both  are 
under  the  entire  control  and  regulation  of  Congress. 

§  358.  Another  question,  of  a  very  different  nature,  is, 
whether  the  Supreme  Court  can  exercise  appellate  juris¬ 
diction  in  the  class  of  cases,  of  which  original  jurisdiction  is 


JURISDICTION  OF  THE  JUDICIARY. 


215 


delegated  to  it  by  the  Constitution  ;  in  other  words,  wheth¬ 
er  the  original  jurisdiction  excludes  the  appellate  ;  and 
so,  on  the  other  hand,  whether  the  latter  implies  a  negative 
of  the  former.  It  has  been  said,  that  the  very  distinction, 
taken  in  the  Constitution,  between  original  and  appellate 
jurisdiction,  presupposes,  that,  where  the  one  can  be  ex¬ 
ercised,  the  other  cannot.  For  example,  since  the  orig¬ 
inal  jurisdiction  extends  to  cases,  where  a  State  is  a  party, 
this  is  the  proper  form,  in  which  such  cases  are  to  be 
brought  before  the  Supreme  Court ;  and,  therefore,  a  case, 
where  a  State  is  a  party,  cannot  be  brought  before  the 
Court,  in  the  exercise  of  its  appellate  jurisdiction  ;  for  the 
affirmative  here,  as  well  as  in  the  cases  of  original  jurisdic¬ 
tion,  includes  a  negative  of  the  cases  not  enumerated. 

§  359.  If  the  correctness  of  this  reasoning  were  ad¬ 
mitted,  it  would  establish  no  more,  than  that  the  Supreme 
Court  could  not  exercise  appellate  jurisdiction  in  cases, 
where  a  State  is  a  party.  But  it  would  by  no  means 
establish  the  doctrine,  that  the  judicial  power  of  the  Uni¬ 
ted  States  did  not  extend,  in  an  appellate  form,  to  such 
cases.  The  exercise  of  appellate  jurisdiction  is  far  from 
being  limited,  by  the  terms  of  the  Constitution,  to  the 
Supreme  Court.  There  can  be  no  doubt,  that  Congress 
may  create  a  succession  of  inferior  tribunals,  in  each  of 
which  it  may  vest  appellate,  as  well  as  original  jurisdic- 
diction.  This  results  from  the  very  nature  of  the  dele¬ 
gation  of  the  judicial  power  in  the  Constitution.  It  is 
delegated  in  the  most  general  terms  ;  and  may,  therefore, 
be  exercised  under  the  authority  of  Congress,  under  every 
variety  of  form  of  original  and  of  appellate  jurisdiction. 
There  is  nothing  in  the  instrument,  which  restrains  or 
limits  the  power  ;  and  it  must,  consequently,  subsist  in  the 
utmost  latitude,  of  which  it  is  in  its  nature  susceptible. 
The  result,  then,  would  be,  that,  if  the  appellate  jurisdic¬ 
tion  over  cases,  to  which  a  State  is  a  party,  could  not,  ac¬ 
cording  to  the  terms  of  the  Constitution,  be  exercised  by  the 
Supreme  Court,  it  might  be  exercised  exclusively  by  an 
inferior  tribunal.  The  soundness  of  any  reasoning,  which 
would  lead  us  to  such  a  conclusion,  may  well  be  questioned. 

§  360.  But  the  reasoning  itself  is  not  well  founded. 


216  CONSTITUTION  OF  THE  UNITED  STATES. 

It  proceeds  upon  the  ground,  that,  because  the  character 
of  the  party  alone,  in  some  instances,  entitles  the  Su¬ 
preme  Court  to  maintain  original  jurisdiction,  without  any 
reference  to  the  nature  of  the  case,  therefore,  the  char¬ 
acter  of  the  case,  which  in  other  instances  is  made  the  very 
foundation  of  appellate  jurisdiction,  cannot  attach.  Now, 
that  is  the  very  point  of  controversy.  It  is  not  only  not 
admitted,  but  it  is  solemnly  denied.  The  argument  might 
just  as  well,  and  with  quite  as  much  force,  be  pressed  in 
the  opposite  direction.  It  might  be  said,  that  the  appel¬ 
late  jurisdiction  is  expressly  extended  by  the  Constitution 
to  all  cases  in  law  and  equity,  arising  under  the  Constitu¬ 
tion,  laws,  and  treaties  of  the  United  States,  and,  there¬ 
fore,  in  no  such  cases  could  the  Supreme  Court  exercise 
original  jurisdiction,  even  though  a  State  were  a  party. 

§  361.  The  next  inquiry  is,  whether  the  eleventh 
amendment  to  the  Constitution  has  effected  any  change 
of  the  jurisdiction,  thus  confided  to  the  judicial  power  of 
the  United  States.  The  words  of  the  amendment,  are, 
u  The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com¬ 
menced  or  prosecuted  against  one  of  the  States,  by  citizens 
of  another  State,  or  by  citizens  or  subjects  of  any  foreign 
state.”  It  is  a  part  of  our  history,  that,  at  the  adoption 
of  the  Constitution,  all  the  States  were  greatly  indebted  ; 
and  the  apprehension,  that  these  debts  might  be  prosecu¬ 
ted  in  the  National  courts,  formed  a  very  serious  objection 
to  that  instrument.  Suits  were  instituted  ;  and  the  Supreme 
Court  maintained  its  jurisdiction.  The  alarm  was  general ; 
and,  to  quiet  the  apprehensions,  that  were  so  extensively 
entertained,  this  amendment  was  proposed  in  Congress, 
and  adopted  by  the  State  Legislatures.  That  its  motive 
was  not  to  maintain  the  sovereignty  of  a  State  from  the 
degradation,  supposed  to  attend  a  compulsory  appearance 
before  the  tribunal  of  the  Nation,  may  be  inferred  from  the 
terms  of  the  amendment.  It  does  not  comprehend  con¬ 
troversies  between  two  or  more  States,  or  between  a 
State  and  a  foreign  state.  The  jurisdiction  of  the  Court 
still  extends  to  these  cases  ;  and  in  these,  a  State  may 
still  be  sued.  We  must  ascribe  the  amendment,  then,  to 


JURISDICTION  OF  THE  JUDICIARY. 


217 


some  other  cause,  than  the  dignity  of  a  State.  There  is 
no  difficulty  in  finding  this  cause.  Those,  who  were  in¬ 
hibited  from  commencing  a  suit  against  a  State,  or  from 
prosecuting  one,  which  might  be  commenced  before  the 
adoption  of  the  amendment,  were  persons,  who  might 
probably  be  its  creditors.  There  was  not  much  reason  to 
fear,  that  foreign  or  sister  States  would  be  creditors  to  any 
considerable  amount ;  and  there  was  reason  to  retain  the 
jurisdiction  of  the  Court  in  those  cases,  because  it  might 
be  essential  to  the  preservation  of  peace.  The  amend¬ 
ment,  therefore,  extended  to  suits  commenced,  or  prose¬ 
cuted  by  individuals,  but  not  to  those  brought  by  States. 

§  362.  The  first  impression,  made  on  the  mind  by  this 
amendment,  is,  that  it  was  intended  for  those  cases,  and 
for  those  only,  in  which  some  demand  against  a  State  is 
made  by  an  individual  in  the  courts  of  the  Union.  If  we 
consider  the  cause,  to  which  it  is  to  be  traced,  we  are 
conducted  to  the  same  conclusion.  A  general  interest 
might  well  be  felt,  in  leaving  to  a  State  the  full  powder  of 
consulting  its  convenience  in  the  adjustment  of  its  debts, 
or  of  other  claims  upon  it ;  but  no  interest  could  be  felt 
in  so  changing  the  relations  between  the  whole  and  its 
parts,  as  to  strip  the  Government  of  the  means  of  pro¬ 
tecting,  by  the  instrumentality  of  its  courts,  the  Consti¬ 
tution  and  laws  from  active  violation. 

§  363.  This  amendment,  then,  was  designed  to  prevent 
any  suit  being  originally  commenced  by  any  private  per¬ 
son  against  a  State  ;  but  it  w7as  not  designed  to  control 
or  interfere  with  the  appellate  jurisdiction  of  the  Supreme 
Court,  in  cases  to  which  that  appellate  jurisdiction  ex¬ 
tended  before  the  amendment.  A  case,  therefore,  orig¬ 
inally  commenced  by  a  State  against  a  private  person  in 
any  other  Court,  which  involved  any  question  arising 
under  the  Constitution,  laws,  or  treaties,  of  the  United 
States,  might  still  be  revised  by  the  Supreme  Court,  upon 
an  appeal,  or  writ  of  error,  as  the  case  might  require. 

§  364.  Another  inquiry,  touching  the  appellate  juris¬ 
diction  of  the  Supreme  Court,  of  a  still  more  general  char¬ 
acter,  is,  whether  it  extends  only  to  the  inferior  courts  of 
the  Union,  constituted  by  Congress,  or  reaches  to  cases 

19  xiii. 


218  CONSTITUTION  OF  THE  UNITED  STATES. 

decided  in  the  State  courts.  This  question  has  been 
made  on  several  occasions ;  and  it  has  been  most  deliber¬ 
ately  and  solemnly  decided  by  the  Supreme  Court,  that 
it  reaches  the  latter  cases. 

§  365.  We  have  already  seen,  that  appellate  jurisdic¬ 
tion  is  given  by  the  Constitution  to  the  Supreme  Court, 
in  all  cases,  where  it  has  not  original  jurisdiction  ;  subject, 
however,  to  such  exceptions  and  regulations,  as  Congress 
may  prescribe.  It  is,  therefore,  capable  of  embracing 
every  case  enumerated  in  the  Constitution,  which  is  not 
exclusively  to  be  decided  by  way  of  original  jurisdiction. 
But  the  exercise  of  appellate  jurisdiction  is  far  from  being 
limited,  by  the  terms  of  the  Constitution,  to  the  Supreme 
Court.  There  can  be  no  doubt,  that  Congress  may  cre¬ 
ate  a  succession  of  inferior  tribunals,  in  each  of  which  it 
may  vest  appellate,  as  well  as  original  jurisdiction.  The 
judicial  power  is  delegated  by  the  Constitution  in  the  most 
general  terms,  and  may,  therefore,  be  exercised  by  Con¬ 
gress,  under  every  variety  of  form  of  appellate,  or  of  ori¬ 
ginal  jurisdiction.  And  as  there  is  nothing  in  the  Con¬ 
stitution,  which  restrains,  or  limits  this  power,  it  must, 
therefore, in  all  these  cases,  subsist  in  the  utmost  latitude, 
of  which,  in  its  own  nature,  it  is  susceptible. 

§  366.  If  the  Constitution  meant  to  limit  the  appellate 
jurisdiction  to  cases  pending  in  the  courts  of  the  United 
States,  it  would  necessarily  follow,  that  the  jurisdiction 
of  these  courts  would,  in  all  the  cases  enumerated  in  the 
Constitution,  be  exclusive  of  State  tribunals.  How, 
otherwise,  could  the  jurisdiction  extend  to  all  cases ,  aris¬ 
ing  under  the  Constitution,  laws,  and  treaties,  of  the  Uni¬ 
ted  States,  or,  to  all  cases  of  admiralty  and  maritime  ju¬ 
risdiction  ?  If  some  of  these  cases  might  be  entertained 
by  State  tribunals,  and  no  appellate  jurisdiction,  as  to 
them,  should  exist,  then  the  appellate  power  would  not 
extend  to  a/Z,  but  to  some,  cases.  If  State  tribunals 
might  exercise  concurrent  jurisdiction  over  all,  or  some 
of  the  other  classes  of  cases  in  the  Constitution,  without 
control,  then  the  appellate  jurisdiction  of  the  United  States 
might,  as  to  such  cases,  have  no  real  existence,  contrary 
to  the  manifest  intent  of  the  Constitution.  Under  such 


JURISDICTION  OF  THE  JUDICIARY. 


219 


circumstances,  to  give  effect  to  the  judicial  power,  it 
must  be  construed  to  be  exclusive  ;  and  this,  not  only 
when  the  very  question  should  arise  directly  ;  but  when  it 
should  arise  incidentally,  in  cases  pending  in  State  courts. 
This  construction  would  abridge  the  jurisdiction  of  such 
courts  far  more,  than  has  been  ever  contemplated  in  any 
act  of  Congress. 

§  367.  But  it  is  plain,  that  the  framers  of  the  Consti¬ 
tution  did  contemplate,  that  cases  within  the  judicial  cog¬ 
nizance  of  the  United  States,  not  only  might,  but  would 
arise  in  the  State  courts,  in  the  exercise  of  their  ordinary 
jurisdiction.  With  this  view,  the  sixth  article  declares, 
that,  “  This  Constitution,  and  the  lawrs  of  the  United 
States,  which  shall  be  made  in  pursuance  thereof,  and  all 
treaties  made,  or  which  shall  be  made,  under  the  author¬ 
ity  of  the  United  States,  shall  be  the  supreme  law  of  the 
land,  and  the  judges,  in  every  State,  shall  be  bound 
thereby,  any  thing,  in  the  Constitution  or  laws  of  any 
State,  to  the  contrary  notwithstanding.”  It  is  obvious, 
that  this  obligation  is  imperative  upon  the  State  judges  in 
their  official,  and  not  merely  in  their  private  capacities. 
From  the  very  nature  of  their  judicial  duties,  they  would 
be  called  upon  to  pronounce  the  law,  applicable  to  the 
case  in  judgement.  They  were  not  to  decide,  merely 
according  to  the  laws,  or  Constitution,  of  the  State,  but 
according  to  the  Constitution,  laws,  and  treaties,  of  the 
United  States, — “the  supreme  law  of  the  land.” 

§  368.  A  moment’s  consideration  will  show  us  the 
necessity  and  propriety  of  this  provision,  in  cases,  where 
the  jurisdiction  of  the  State  courts  is  unquestionable. 
Suppose  a  contract,  for  the  payment  of  money,  is  made 
between  citizens  of  the  same  State,  and  performance 
thereof  is  sought  in  the  courts  of  that  State  ;  no  person 
can  doubt,  that  the  jurisdiction  completely  and  exclusively 
attaches,  in  the  first  instance,  to  such  courts.  Suppose 
at  the  trial,  the  defendant  sets  up,  in  his  defence,  a  tender 
under  a  State  law,  making  paper  money  a  good  tender, 
or  a  State  law,  impairing  the  obligation  of  such  contract, 
which  law,  if  binding,  would  defeat  the  suit.  The  Con¬ 
stitution  of  the  United  States  has  declared,  that  no  State 


220  CONSTITUTION  OF  THE  UNITED  STATES. 

shall  make  any  thing  but  gold  or  silver  coin  a  tender  in 
payment  of  debts,  or  pass  a  law  impairing  the  obligation 
of  contracts.  If  Congress  shall  not  have  passed  a  law, 
providing  for  the  removal  of  such  a  suit  to  the  courts  of  the 
United  States,  must  not  the  State  court  proceed  to  hear, 
and  determine  it  ?  Can  a  mere  plea  in  defence  be,  of 
itself,  a  bar  to  further  proceedings,  so  as  to  prohibit  an 
inquiry  into  its  truth,  or  legal  propriety,  when  no  other 
tribunal  exists,  to  which  judicial  cognizance  of  such  cases 
is  confided  ?  Suppose  an  indictment  for  a  crime  in  a 
State  court,  and  the  defendant  should  allege  in  his  de¬ 
fence,  that  the  crime  was  created  by  an  ex  post  facto  act 
of  the  State,  must  not  the  State  court,  in  the  exercise  of 
a  jurisdiction,  which  has  already  rightfully  attached,  have 
a  right  to  pronounce  on  the  validity,  and  sufficiency  of 
the  defence  ?  It  would  be  extremely  difficult,  upon  any 
legal  principles,  to  give  a  negative  answer  to  these  inqui¬ 
ries.  Innumerable  instances  of  the  same  sort  might  be 
stated,  in  illustration  of  the  position  ;  and  unless  the  State 
courts  could  sustain  jurisdiction  in  such  cases,  this  clause 
of  the  sixth  article  would  be  without  meaning  or  effect  ; 
and  public  mischiefs,  of  a  most  enormous  magnitude, 
would  inevitably  ensue. 

§  369.  It  must,  therefore,  be  conceded,  that  the  Con¬ 
stitution  not  only  contemplated,  but  meant  to  provide  for, 
cases  within  the  scope  of  the  judicial  power  of  the  United 
States,  which  might  yet  be  brought  before  State  tribunals. 
It  was  foreseen,  that,  in  the  exercise  of  their  ordinary 
jurisdiction,  State  courts  would,  incidentally,  take  cogni¬ 
zance  of  cases  arising  under  the  Constitution,  the  laws, 
and  treaties,  of  the  United  States.  Yet,  to  all  these  cases 
the  judicial  power,  by  the  very  terms  of  the  Constitution, 
is  to  extend.  It  cannot  extend,  by  original  jurisdiction, 
if  that  has  already  rightfully  and  exclusively  attached  in 
the  State  courts,  which  (as  has  been  already  shown)  may 
occur  ;  it  must,  therefore,  extend  by  appellate  jurisdic¬ 
tion,  or  not  at  all.  It  would  seem  to  follow,  that  the 
appellate  power  of  the  United  States  must,  in  such  cases, 
extend  to  State  tribunals  ;  and,  if  in  such  cases,  there  is 
no  reason,  why  it  should  not  equally  attach  upon  all  others 
within  the  purview  of  the  Constitution. 


JURISDICTION  OF  THE  JUDICIARY.  221 

§  370.  It  is  manifest,  that  the  Constitution  has  pro¬ 
ceeded  upon  a  theory  of  its  own,  and  given  and  withheld 
powers  according  to  the  judgement  of  the  American  peo¬ 
ple,  by  whom  it  was  adopted.  We  can  only  construe  its 
powers,  and  cannot  here  inquire  into  the  policy,  or  princi¬ 
ples,  which  induced  the  grant  of  them.  The  Constitution 
has  presumed,  (whether  rightly  or  wrongly,  we  do  not  here 
inquire,)  that  State  attachments,  State  prejudices,  State 
jealousies,  and  State  interests,  might  sometimes  obstruct, 
or  control,  or  be  supposed  to  obstruct,  or  control,  the  reg¬ 
ular  administration  of  justice.  Hence,  in  controversies 
between  States  ;  between  citizens  of  different  States  ;  be¬ 
tween  citizens,  claiming  grants  under  different  States  ;  be¬ 
tween  a  State  and  its  citizens,  or  foreigners  ;  and  between 
citizens  and  foreigners  ;  it  enables  the  parties,  under  the 
authority  of  Congress,  to  have  the  controversies  heard, 
tried,  and  determined,  before  the  National  tribunals.  No 
other  reason,  than  that,  which  has  been  stated,  can  be 
assigned,  why  some,  at  least,  of  these  cases  should  not 
have  been  left  to  the  cognizance  of  the  State  courts.  In 
respect  to  the  other  enumerated  cases, — cases  arising 
under  the  Constitution,  laws,  and  treaties,  of  the  United 
States  ;  cases  affecting  ambassadors,  and  other  public 
ministers  ;  and  cases  of  admiralty  and  maritime  jurisdic¬ 
tion, — reasons  of  a  higher  and  more  extensive  nature, 
touching  the  safety,  peace,  and  sovereignty,  of  the  Nation, 
might  well  justify  a  grant  of  exclusive  jurisdiction. 

§  371.  This  is  not  all.  A  motive  of  another  kind, 
perfectly  compatible  with  the  most  sincere  respect  for 
State  tribunals,  might  induce  the  grant  of  appellate  power 
over  their  decisions.  That  motive  is  the  importance, 
and  even  necessity,  of  uniformity  of  decisions  throughout 
the  whole  United  States,  upon  all  subjects  within  the  pur¬ 
view  of  the  Constitution.  Judges  of  equal  learning  and 
integrity,  in  different  States,  might  differently  interpret  a 
statute,  or  a  treaty,  of  the  United  States,  or  even  the  Con¬ 
stitution  itself.  If  there  were  no  revising  authority  to 
control  these  jarring  and  discordant  judgements,  and  har¬ 
monize  them  into  uniformity,  the  laws,  the  treaties,  and 
the  Constitution,  of  the  United  States,  would  be  different 

19* 


222  CONSTITUTION  OF  THE  UNITED  STATES. 

m  different  States  ;  and  might,  perhaps,  never  have  pre¬ 
cisely  the  same  construction,  obligation,  or  efficacy,  in 
any  two  States.  The  public  mischiefs,  which  would 
attend  such  a  state  of  things,  would  be  truly  deplorable  ; 
and  it  cannot  be  believed,  that  they  could  have  escaped 
the  enlightened  Convention,  which  formed  the  Constitu¬ 
tion,  What,  indeed,  might  then  have  been  only  proph¬ 
ecy,  has  now  become  fact ;  and  the  appellate  jurisdiction 
must  continue  to  be  the  only  adequate  remedy  for  such 
evils. 

§  372.  There  is  an  additional  consideration,  which  is 
entitled  to  great  weight.  The  Constitution  of  the  United 
States  was  designed  for  the  common  and  equal  benefit  of 
all  the  people  of  the  United  States.  The  judicial  power 
was  granted  for  the  same  benign  and  salutary  purpose. 
It  was  not  to  be  exercised  exclusively  for  the  benefit  of 
parties,  who  might  be  plaintiffs,  and  would  elect  the  Na¬ 
tional  forum  ;  but  also  for  the  protection  of  defendants, 
who  might  be  entitled  to  try  their  rights,  or  assert  their 
privileges,  before  the  same  forum.  Yet,  if  the  appellate 
jurisdiction  does  not  extend  to  such  cases,  it  will  follow, 
that,  as  the  plaintiff  may  always  elect  the  State  courts, 
the  defendant  may  be  deprived  of  all  the  security,  which 
the  Constitution  intended  in  aid  of  his  rights.  Such  a 
state  of  things  can,  in  no  respect,  be  considered  as  giving 
equal  rights. 

§  373.  Strong  as  this  conclusion  stands  upon  the  gen¬ 
eral  language  of  the  Constitution,  it  may  still  derive  sup¬ 
port  from  other  sources.  It  is  an  historical  fact,  that  this 
exposition  of  the  Constitution,  extending  its  appellate  pow¬ 
er  to  State  courts,  was,  previous  to  its  adoption,  uniformly 
and  publicly  avowed  by  its  friends,  and  admitted  by  its 
enemies,  as  the  basis  of  their  respective  reasonings,  both 
in  and  out  of  the  State  conventions.  It  is  an  historical  fact, 
that,  at  the  time,  when  the  Judiciary  Act  was  submitted 
to  the  deliberations  of  the  first  Congress,  composed,  as  it 
was,  not  only  of  men  of  great  learning  and  ability,  but  of 
men,  who  had  acted  a  principal  part  in  framing,  support¬ 
ing,  or  opposing,  that  Constitution,  the  same  exposition 
was  explicitly  declared,  and  admitted  by  the  friends,  and 


JURISDICTION  OF  THE  JUDICIARY. 


223 


by  the  opponents  of  that  system.  It  is  an  historical  fact, 
that  the  Supreme  Court  of  the  United  States  have,  from 
time  to  time,  sustained  this  appellate  jurisdiction,  in  a  great 
variety  of  cases,  brought  from  the  tribunals  of  many  of 
the  most  important  States  in  the  Union  ;  and  that  no 
State  tribunal  ever  breathed  a  judicial  doubt  on  the  sub¬ 
ject,  or  declined  to  obey  the  mandate  of  the  Supreme 
Court,  until  a  comparatively  recent  period.  This  weight 
of  contemporaneous  exposition,  by  all  parties,  this  acqui¬ 
escence  of  enlightened  State  courts,  and  these  judicial  de¬ 
cisions  of  the  Supreme  Court,  through  so  long  a  period, 
places  the  doctrine  upon  a  foundation  of  authority,  which 
cannot  be  shaken,  without  delivering  over  the  subject  to 
perpetual,  and  irremediable  doubts. 

§  374.  It  would  be  difficult,  and  perhaps  not  desira¬ 
ble,  to  lay  down  any  general  rules  in  relation  to  the  cases, 
in  which  the  judicial  power  of  the  courts  of  the  United 
States  is  exclusive  of  the  State  courts,  or  in  which  it  may 
be  made  so  by  Congress,  until  they  shall  be  settled  by 
some  positive  adjudication  of  the  Supreme  Court.  That 
there  are  some  cases,  in  which  that  power  is  exclusive, 
cannot  well  be  doubted  ;  that  there  are  others,  in  which 
it  may  be  made  so  by  Congress,  admits  of  as  little  doubt ; 
and  that,  in  other  cases,  it  is  concurrent  in  the  State  courts, 
at  least  until  Congress  shall  have  passed  some  act,  ex¬ 
cluding  the  concurrent  jurisdiction,  will  scarcely  be  de¬ 
nied.  It  seems  to  be  admitted,  that  the  jurisdiction  of 
the  courts  of  the  United  States  is,  or  at  least  may  be, 
made  exclusive  in  all  cases  arising  under  the  Constitution, 
laws,  and  treaties,  of  the  United  States  ;  in  all  cases 
affecting  ambassadors,  other  public  ministers,  and  consuls  ; 
in  all  cases  of  admiralty  and  maritime  jurisdiction,  (which 
are  exclusive  in  their  character  ;)  in  controversies,  to 
which  the  United  States  shall  be  a  party  ;  in  controver¬ 
sies  between  two  or  more  States  ;  in  controversies  be¬ 
tween  a  State  and  citizens  of  another  State  ;  and  in  con¬ 
troversies  between  a  State  and  foreign  States,  citizens,  or 
subjects.  And  it  is  only  in  those  cases,  where,  previous 
to  the  constitution,  State  tribunals  possessed  jurisdiction, 
independent  of  National  authority,  that  they  can  now  con¬ 
stitutionally  exercise  a  concurrent  jurisdiction. 


224  CONSTITUTION  OF  THE  UNITED  STATES. 

§  375.  In  the  exercise  of  the  jurisdiction  confided 
respectively  to  the  State  courts,  and  those  courts  of  the 
United  States,  (where  the  latter  have  not  appellate  juris¬ 
diction,)  it  is  plain,  that  neither  can  have  any  right  to  in¬ 
terfere  with,  or  control,  the  operations  of  the  other.  It 
has  accordingly  been  settled,  that  no  State  court  can  issue 
an  injunction  upon  any  judgement  in  a  court  of  the  United 
States  ;  the  latter  having  an  exclusive  authority  over  its 
own  judgements  and  proceedings.  Nor  can  any  State 
court,  or  any  State  legislature,  annul  the  judgements  of 
the  courts  of  the  United  States,  or  destroy  the  rights  ac¬ 
quired  under  them  ;  nor  in  any  manner  deprive  the  Su¬ 
preme  Court  of  its  appellate  jurisdiction  ;  nor  in  any 
manner  interfere  with,  or  control,  the  process  (whether 
mesne  or  final)  of  the  courts  of  the  United  States  ;  nor 
prescribe  the  rules  or  forms  of  proceeding  ;  nor  affect  a 
process  in  the  courts  of  the  United  States  ;  nor  issue  a 
mandamus  to  an  officer  of  the  United  States,  to  compel 
him  to  perform  duties,  devolved  on  him  by  the  laws  of 
the  United  States.  And,  although  writs  of  habeas  corpus 
have  been  issued  by  State  judges,  and  State  courts,  in 
cases  where  the  party  has  been  in  custody,  under  the  au¬ 
thority  of  process  of  the  courts  of  the  United  States, 
there  has  been  considerable  diversity  of  opinion,  whether 
such  an  exercise  of  authority  is  constitutional  ;  and  it  yet 
remains  to  be  decided,  whether  it  can  be  maintained. 

§  376.  On  the  other  hand,  the  National  courts  have  no 
authority  (in  cases  not  within  the  appellate  jurisdiction  of 
the  United  States)  to  issue  injunctions  to  judgements  in 
the  State  courts  ;  or  in  any  other  manner  to  interfere  with 
their  jurisdiction  or  proceedings. 

§  377.  Having  disposed  of  these  points,  we  may  again 
recur  to  the  language  of  the  Constitution,  for  the  purpose 
of  some  further  illustrations.  The  language  is,  that  “the 
Supreme  Court  shall  have  appellate  jurisdiction,  both  as 
to  law  and  fact,  with  such  exceptions,  and  under  such 
regulations,  as  the  Congress  shall  make.” 

§  37S.  In  the  first  place,  it  may  not  be  without  use  to 
ascertain,  what  is  here  meant  by  appellate  jurisdiction  ; 
and  what  is  the  mode,  in  which  it  may  be  exercised.  The 


JURISDICTION  OF  THE  JUDICIARY. 


225 


essential  criterion  of  appellate  jurisdiction  is,  that  it  revises 
and  corrects  the  proceedings  in  a  cause  already  instituted, 
and  does  not  create  that  cause.  In  reference  to  judicial 
tribunals,  an  appellate  jurisdiction,  therefore',  necessarily 
implies,  that  the  subject  matter  has  been  already  instituted 
in,  and  acted  upon  by,  some  other  court,  whose  judge¬ 
ment  or  proceedings  are  to  be  revised.  This  appellate 
jurisdiction  may  be  exercised  in  a  variety  of  forms,  and 
indeed  in  any  form,  which  the  Legislature  may  choose  to 
prescribe  ;  but,  still,  the  substance  must  exist,  before  the 
form  can  be  applied  to  it.  To  operate  at  all,  then,  un¬ 
der  the  Constitution  of  the  United  States,  it  is  not  suffi¬ 
cient,  that  there  has  been  a  decision  by  some  officer,  or 
Department,  of  the  United  States  ;  but  it  must  be  by  one 
clothed  with  judicial  authority,  and  acting  in  a  judicial 
capacity.  A  power,  therefore,  conferred  by  Congress 
on  the  Supreme  Court,  to  issue  a  mandamus  to  public 
officers  of  the  United  States  generally,  is  not  warranted 
by  the  Constitution  ;  for  it  is,  in  effect,  under  such  cir¬ 
cumstances,  an  exercise  of  original  jurisdiction.  But 
where  the  object  is  to  revise  a  judicial  proceeding,  the 
mode  is  wholly  immaterial  ;  and  a  writ  of  habeas  corpus , 
or  of  mandamus,  a  writ  of  error,  or  an  appeal,  may  be 
used,  as  the  Legislature  may  prescribe. 

§  379.  The  most  usual  modes  of  exercising  appellate 
jurisdiction,  at  least,  those,  which  are  most  known  in  the 
United  States,  are,  by  a  writ  of  error,  or  by  an  appeal, 
or  by  some  process  of  removal  of  a  suit  from  an  inferior 
tribunal.  An  appeal  is  a  process  of  civil  law  origin,  and 
removes  a  cause  entirely,  subjecting  the  fact,  as  well  as 
the  law,  to  a  review  and  a  re-trial.  A  writ  of  error  is  a 
process  of  common  law  origin  ;  and  it  removes  nothing 
for  re-examination,  but  the  law.  The  former  mode  is 
usually  adopted  in  cases  of  equity  and  admiralty  jurisdic¬ 
tion  ;  the  latter,  in  suits  at  common  law  tried  by  a  jury. 

§  3S0.  It  is  observable,  that  the  language  of  the  Con¬ 
stitution  is,  that  u  the  Supreme  Court  shall  have  appellate 
jurisdiction,  both  as  to  law  and  fact.”  This  provision 
was  a  subject  of  no  small  alarm  and  misconstruction  at  the 
time  of  the  adoption  of  the  Constitution,  as  it  was  sup- 


226  CONSTITUTION  OF  THE  UNITED  STATES. 

posed  to  confer  on  the  Supreme  Court,  in  the  exercise 
of  its  appellate  jurisdiction,  the  power  to  review  the  de¬ 
cision  of  a  jury  in  mere  matters  of  fact ;  and  thus,  in 
effect,  to  destroy  the  validity  of  their  verdict,  and  to  re¬ 
duce  to  a  mere  form,  the  right  of  a  trial  by  jury  in  civil 
cases.  The  objection  was  at  once  seized  hold  of  by  the 
enemies  of  the  Constitution  ;  and  it  was  pressed  with  an 
urgency  and  zeal,  which  were  well  nigh  preventing  its 
ratification.  There  is  certainly  some  foundation,  in  the 
ambiguity  of  the  language,  to  justify  an  interpretation,  that 
such  a  review  might  constitutionally  be  within  the  reach 
of  the  appellate  power,  if  Congress  should  choose  to  car¬ 
ry  it  to  that  extreme  latitude.  But,  practically  speaking, 
there  was  not  the  slightest  danger,  that  Congress  would 
ever  adopt  such  a  course,  even  if  it  were  within  their  con¬ 
stitutional  authority  ;  since  it  would  be  at  variance  with 
all  the  habits,  feelings,  and  institutions,  of  the  whole  coun¬ 
try.  At  least,  it  might  be  affirmed,  that  Congress  would 
scarcely  take  such  a  step,  until  the  people  were  prepared 
to  surrender  all  the  great  securities  of  their  civil,  as  well 
as  of  their  political  rights  and  liberties  ;  and  in  such  an 
event,  the  retaining  of  the  trial  by  jury  would  be  a  mere 
mockery.  The  real  object  of  the  provision  was,  to  retain 
the  power  of  reviewing  the  fact,  as  well  as  the  law,  in  cases 
of  equity,  and  of  admiralty,  and  maritime  jurisdiction.  And 
the  manner,  in  which  it  is  expressed,  was  probably  occa¬ 
sioned  by  the  desire  to  avoid  the  introduction  of  the  subject 
of  a  trial  by  jury,  in  civil  cases,  upon  which  the  Conven¬ 
tion  were  greatly  divided  in  opinion. 

§  381.  These  views,  however  reasonable  they  may 
seem  to  considerate  minds,  did  not  wholly  satisfy  the  pop¬ 
ular  opinion  ;  and  as  the  objection  had  a  vast  influence 
upon  public  opinion,  and  amendments  were  proposed  by 
various  State  conventions  on  this  subject,  Congress,  at  its 
first  session,  under  the  guidance  of  the  friends  of  the  Con¬ 
stitution,  proposed  an  amendment,  which  was  ratified  by 
the  people,  and  is  now  incorporated  into  the  Constitution. 
It  is  in  these  words  :  “In  suits  at  common  law,  where 
the  value  in  controversy  shall  exceed  twenty  dollars,  the 
right  of  a  trial  by  jury  shall  be  preserved.  And  no  fact, 


JURISDICTION  OF  THE  JUDICIARY. 


227 


tried  by  a  jury,  shall  be  otherwise  re-examined  in  any  court 
of  the  United  States,  than  according  to  the  rules  of  the 
common  law.”  This  amendment  completely  struck  down 
the  objection  ;  and  has  secured  the  right  of  a  trial  by  jury, 
in  civil  cases,  in  the  fullest  latitude  of  the  common  law. 
It  is  a  most  important  and  valuable  amendment ;  and 
places  upon  the  high  ground  of  constitutional  right,  the 
inestimable  privilege  of  a  trial  by  jury  in  civil  cases,  a 
privilege  scarcely  inferior  to  that  in  criminal  cases,  which 
is  conceded  by  all  persons  to  be  essential  to  political  and 
civil  liberty. 

§  382.  The  appellate  jurisdiction  is  to  be,  u  with  such 
exceptions,  and  under  such  regulations,  as  the  Congress 
shall  prescribe.”  But,  here,  a  question  is  presented 
upon  the  construction  of  the  Constitution,  whether  the 
appellate  jurisdiction  attaches  to  the  Supreme  Court, 
subject  to  be  withdrawn  and  modified  by  Congress  ;  or, 
whether  an  act  of  Congress  is  necessary  to  confer  the 
jurisdiction  upon  the  court.  If  the  former  be  the  true  con¬ 
struction,  then  the  entire  appellate  jurisdiction,  if  Congress 
should  make  no  exceptions  or  regulations,  would  attach, 
by  force  of  the  terms,  to  the  Supreme  Court.  If  the  lat¬ 
ter,  then,  notwithstanding  the  imperative  language  of  the 
Constitution,  the  Supreme  Court  is  lifeless,  until  Con¬ 
gress  have  conferred  power  on  it.  And  if  Congress  may 
confer  power,  they  may  repeal  it.  So  that  the  whole 
efficiency  of  the  judicial  power  is  left  by  the  Constitution 
wholly  unprotected  and  inert,  if  Congress  shall  refrain  to 
act.  There  is  certainly  very  strong  ground  to  maintain, 
that  the  language  of  the  Constitution  meant  to  confer  the 
appellate  jurisdiction  absolutely  on  the  Supreme  Court,, 
independent  of  any  action  by  Congress  ;  and  to  require 
this  action  to  divest  or  regulate  it.  The  language,  as  to 
the  original  jurisdiction  of  the  Supreme  Court,  admits  of 
no  doubt.  It  confers  it  without  any  action  of  Congress. 
Why  should  not  the  same  language,  as  to  the  appellate 
jurisdiction,  have  the  same  interpretation  ?  It  leaves  the 
power  of  Congress  complete,  to  make  exceptions  and  reg¬ 
ulations  ;  but  it  leaves  nothing  to  their  inaction.  This 
construction  was  asserted  in  argument  at  an  early  period 


228  CONSTITUTION  OF  THE  UNITED  STATES. 

of  the  Constitution,  and  it  has  since  been  deliberately  con¬ 
firmed  by  the  Supreme  Court. 

§  383.  The  functions  of  the  judges  of  the  courts  of 
the  United  States  are  strictly  and  exclusively  judicial. 
They  cannot,  therefore,  be  called  upon  to  advise  the 
President  in  any  Executive  measures  ;  or  to  give  extra¬ 
judicial  interpretations  of  law  ;  or  to  act  as  commissioners 
in  cases  of  pensions,  or  other  like  proceedings. 


CHAPTER  XXXII. 

Trial  by  Jury ,  and  its  Incidents. — Definition  of  Trea¬ 
son. 

§  384.  The  next  clause  of  the  second  section  of  the 
third  article  is,  u  The  trial  of  ^11  crimes,  except  in  cases 
of  impeachment,  shall  be  by  jury ;  and  such  trial  shall 
be  held  in  the  State,  where  the  said  crimes  shall  have  been 
committed.  But  when  not  committed  within  any  State, 
the  trial  shall  be  at  such  place  or  places,  as  the  Congress 
may  by  law  have  directed.”  It  seems  hardly  necessary,  in 
this  place,  to  expatiate  upon  the  antiquity,  or  importance, 
of  the  trial  by  jury  in  criminal  cases.  It  was,  from  very 
early  times,  insisted  on  by  our  ancestors  in  the  parent 
country,  as  the  great  bulwark  of  their  civil  and  political 
liberties,  and  watched  with  an  unceasing  jealousy  and  so¬ 
licitude.  The  right  constitutes  a  fundamental  article  of 
Magna  Charta,  in  which  it  is  declared,  u  that  no  man  shall 
be  arrested,  nor  imprisoned,  nor  banished,  nor  deprived 
of  life,  &c.,  but  by  the  judgement  of  his  peers,  or  by  the 
law  of  the  land.”  The  judgement  of  his  peers  here  allud¬ 
ed  to,  and  commonly  called,  in  the  quaint  language  of  for¬ 
mer  times,  a  trial  per  pais ,  or  trial  by  the  country,  is  the 
trial  by  a  jury,  who  are  called  the  peers  of  the  party  ac¬ 
cused,  being  of  the  like  condition  and  equality  in  the  state. 
When  our  more  immediate  ancestors  removed  to  Ameri¬ 
ca,  they  brought  this  great  privilege  with  them,  as  their 
birthright  and  inheritance,  as  a  part  of  that  admirable 


TRIAL  BY  JURY. 


229 


common  law,  which  had  fenced  round,  and  interposed 
barriers  on  every  side  against  the  approaches  of  arbitrary 
power.  It  is  now  incorporated  into  all  our  State  Consti¬ 
tutions,  as  a  fundamental  right;  and  the  Constitution  of 
the  United  States  would  have  been  justly  obnoxious  to 
the  most  conclusive  objection,  if  it  had  not  recognised 
and  confirmed  it,  in  the  most  solemn  terms. 

§  385.  The  great  object  of  a  trial  by  jury,  in  criminal 
cases,  is  to  guard  against  a  spirit  of  oppression  and  ty¬ 
ranny,  on  the  part  of  rulers,  and  against  a  spirit  of  violence 
and  vindictiveness,  on  the  part  of  the  people.  Indeed,  it 
is  often  more  important  to  guard  against  the  latter,  than 
the  former.  The  sympathies  of  all  mankind  are  enlisted 
against  the  revenge  and  fury  of  a  single  despot ;  and 
every  attempt  will  be  made  to  screen  his  victims  from 
punishment.  Bui.  it  is  difficult  to  escape  from  the  ven¬ 
geance  of  an  indignant  people,  roused  into  hatred  by  un¬ 
founded  calumnies,  or  stimulated  to  cruelty  by  political 
enmity,  and  party  jealousy.  The  appeal  for  safety,  under 
such  circumstances,  can  scarcely  be  made  by  the  innocent, 
in  any  other  manner,  than  by  the  strict  control  of  a  court 
of  justice,  and  the  firm  and  impartial  verdict  of  a  jury, 
sworn  to  do  right,  and  guided  solely  by  legal  evidence, 
and  a  sense  of  duty. 

§  386.  It  is  observable,  that  the  trial  of  all  crimes  is 
not  only  to  be  by  jury,  but  to  he  held  in  the  State,  where 
they  are  committed.  The  object  of  this  clause  is,  to  se¬ 
cure  the  party  accused  from  being  dragged  to  a  trial  in 
some  distant  State,  far  away  from  his  friends,  and  wit¬ 
nesses,  and  neighborhood  ;  and  thus  subjected  to  the  ver¬ 
dict  of  mere  strangers,  who  may  feel  no  common  sympa¬ 
thy,  or  who  may  even  cherish  animosities,  or  prejudices, 
against  him.  Besides  this,  a  trial  in  a  distant  State  or 
Territory  might  subject  the  party  to  the  most  oppressive 
expenses,  or  perhaps  even  to  the  inability  of  procuring 
the  proper  witnesses  to  establish  his  innocence.  There 
is  little  danger,  indeed,  that  Congress  would  ever  exert 
their  power  in  so  oppressive  and  unjustifiable  a  man¬ 
ner.  But  upon  a  subject,  so  vital  to  the  security  of  the 
citizen,  it  was  fit  to  leave  as  little  as  possible  to  mere  dis- 

20  xiii. 


230  CONSTITUTION  OF  THE  UNITED  STATES. 

cretion.  By  the  common  law,  the  trial  of  all  crimes  is 
required  to  be  in  the  county,  where  they  are  committed. 
Nay,  it  originally  carried  its  jealousy  still  farther,  and  re¬ 
quired,  that  the  jury  itself  should  come  from  the  vicinage 
of  the  place,  where  the  crime  was  alleged  to  be  commit¬ 
ted.  This  was  certainly  a  precaution,  which,  however 
justifiable  in  an  early  and  barbarous  state  of  society,  is  lit¬ 
tle  commendable  in  its  more  advanced  stages.  It  has 
been  justly  remarked,  that  in  such  cases,  to  summon  a 
jury,  laboring  under  local  prejudices,  is  laying  a  snare  for 
their  consciences  ;  and,  though  they  should  have  virtue 
and  vigor  of  mind  sufficient  to  keep  them  upright,  the 
parties  will  grow  suspicious,  and  indulge  many  doubts  of 
the  impartiality  of  the  trial.  It  was  doubtless  by  analogy 
to  this  rule  of  the  common  law,  that  all  criminal  trials  are 
required  to  be  in  the  State,  where  the  crimes  are  com¬ 
mitted.  But,  as  crimes  may  be  committed  on  the  high 
seas,  and  elsewhere,  out  of  the  territorial  jurisdiction  of  a 
State,  it  was  indispensable,  that,  in  such  cases,  Congress 
should  be  enabled  to  provide  the  place  of  trial.  But  even 
here  we  may  perceive,  from  the  language  used,  that  the 
trial  is  to  be  in  the  place,  which  Congress  may  have  di¬ 
rected  ;  not  in  one,  which  they  shall  direct  after  the 
commission  of  the  offence. 

§  387.  In  order  to  secure  this  great  palladium  of  lib¬ 
erty,  the  trial  by  jury,  in  criminal  cases,  from  all  possi¬ 
bility  of  abuse,  certain  amendments  have  since  been  made 
to  the  Constitution,  which  add  greatly  to  the  original  con¬ 
stitutional  barriers  against  persecution  and  oppression. 
They  are  as  follows  :  “No  person  shall  be  held  to  an¬ 
swer  for  a  capital,  or  otherwise  infamous  crime,  unless 
on  a  presentment  or  indictment  of  a  grand  jury,  except 
in  cases  arising  in  the  land  or  naval  forces,  or  in  the  mili¬ 
tia,  when  in  actual  service,  in  time  of  war,  or  public  dan¬ 
ger.  Nor  shall  any  person  be  subject  for  the  same  of¬ 
fence  to  be  twice  put  in  jeopardy  of  life  or  limb  ;  nor 
shall  be  compelled,  in  any  criminal  case,  to  be  a  witness 
against  himself ;  nor  be  deprived  of  life,  liberty,  or  prop¬ 
erty,  without  due  process  of  law  ;  nor  shall  private  prop¬ 
erty  be  taken  for  public  use,  without  just  compensation. 


TRIAL  BY  JURY. 


231 


In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial  by  an  impartial  jury 
of  the  State  and  district,  wherein  the  crime  shall  have 
been  committed  ;  which  district  shall  have  been  pre¬ 
viously  ascertained  by  law  ;  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation  ;  to  be  confronted 
with  the  witnesses  against  him  ;  to  have  compulsory  pro¬ 
cess  for  obtaining  witnesses  in  his  favor ;  and  to  have  the 
assistance  of  counsel  for  his  defence.’5 

§  388.  Upon  the  main  provisions  of  these  articles,  a 
few  remarks  only  will  be  made,  since  they  are  almost 
self-evident,  and  can  require  few  illustrations  to  establish 
their  utility  and  importance. 

§  389.  The  first  clause  requires  the  interposition  of  a 
grand  jury,  by  way  of  presentment  or  indictment,  before 
the  party  accused  can  be  required  to  answer  to  any  capi¬ 
tal  and  infamous  crime,  charged  against  him.  iVnd  this 
is  regularly  true  at  the  common  law,  of  all  offences,  above 
the  grade  of  common  misdemeanors.  A  grand  jury,  it  is 
well  known,  are  selected  in  the  manner  prescribed  by  law, 
and  duly  sworn  to  make  inquiry,  and  present  all  offences 
committed  against  the  authority  of  the  State  government, 
within  the  body  of  the  county,  for  which  they  are  impan- 
nelled.  In  the  National  courts,  they  are  sworn  to  inquire, 
and  present  all  offences  committed  against  the  authority 
of  the  National  Government,  within  the  State  or  district, 
for  which  they  are  impannelled,  or  elsewhere  within  the 
jurisdiction  of  the  National  Government.  The  grand 
jury  may  consist  of  any  number,  not  less  than  twelve,  nor 
more  than  twenty-three  ;  and  twelve  at  least  must  concur 
in  every  accusation.  They*  sit  in  secret,  and  examine 
the  evidence  laid  before  them  by  themselves.  A  pre¬ 
sentment,  properly  speaking,  is  an  accusation,  made  by 
a  grand  jury  of  their  own  mere  motion,  of  an  offence  upon 
their  own  observation  and  knowledge,  or  upon  evidence 
before  them,  and  without  any  bill  of  indictment  laid  before 
them  at  the  suit  of  the  government.  An  indictment  is  a 
written  accusation  of  an  offence  preferred  to,  and  pre¬ 
sented,  upon  oath,  as  true,  by  a  grand  jury,  at  the  suit  of 
the  government.  Upon  a  presentment,  the  proper  officer 


232  CONSTITUTION  OF  THE  UNITED  STATES. 

of  the  court  must  frame  an  indictment,  before  the  party  ac¬ 
cused  can  be  put  to  answer  it.  But  an  indictment  is  usually, 
in  the  first  instance,  framed  by  the  officers  of  the  govern¬ 
ment,  and  laid  before  the  grand  jury.  When  the  grand  jury 
have  heard  the  evidence,  if  they  are  of  opinion,  that  the 
indictment  is  groundless,  or  not  supported  by  evidence, 
they  used  formerly  to  endorse  on  the  back  of  the  bill, 
“  ignoramus,”  or  we  know  nothing  of  it,  whence  the  bill 
wras  said  to  be  ignored.  But  now,  they  assert,  in  plain 
English,  “not  a  true  bill,”  or,  which  is  a  better  way, 
“not  found  and  then  the  party  is  entitled  to  be  dis¬ 
charged,  if  in  custody,  without  further  answer.  But  a 
fresh  bill  may  be  preferred  against  him  by  another  grand 
jury.  If  the  grand  jury  are  satisfied  of  the  truth  of  the 
accusation,  then  they  write  on  the  back  of  the  bill,  “  a 
true  bill,”  (or  anciently,  “  billa  vera .”)  The  bill  is  then 
said  to  be  found,  and  is  publicly  returned  into  court  ;  the 
party  stands  indicted,  and  may  then  be  required  to  answer 
the  matters  charged  against  him. 

§  390.  From  this  summary  statement,  it  is  obvious,  that 
the  grand  jury  perform  most  important  public  functions  ; 
and  are  a  great  security  to  the  citizens  against  vindictive 
prosecutions,  either  by  the  government,  or  by  political 
partisans,  or  by  private  enemies.  Nor  is  this  all  :  the 
indictment  must  charge  the  time,  and  place,  and  nature, 
and  circumstances,  of  the  offence,  with  clearness  and  cer¬ 
tainty  ;  so  that  the  party  may  have  full  notice  of  the  charge, 
and  be  able  to  make  his  defence  with  all  reasonable  knowl¬ 
edge  and  ability. 

§  391.  Another  clause  declares,  that  no  person  shall 
be  subject,  “for  the  same 'offence,  to  be  twice  put  in 
jeopardy  of  life  and  limb.”  This,  again,  is  another  great 
privilege  secured  by  the  common  law.  The  meaning  of 
it  is,  that  a  party  shall  not  be  tried  a  second  time,  for  the 
same  offence,  after  he  has  once  been  convicted,  or  ac¬ 
quitted  of  the  offence  charged,  by  the  verdict  of  a  jury, 
and  judgement  has  passed  thereon  for  or  against  him.  But 
it  does  not  mean,  that  he  shall  not  be  tried  for  the  offence 
a  second  time,  if  the  jury  have  been  discharged  without 
giving  any  verdict ;  or,  if,  having  given  a  verdict,  judge- 


TRIAL  BY  JURY. 


233 


ment  has  been  arrested  upon  it,  or  a  new  trial  has  been 
granted  in  his  favor  ;  for,  in  such  a  case,  his  life  or  limb 
cannot  judicially  be  said  to  have  been  put  in  jeopardy. 

§  392.  The  next  clause  prohibits  any  person  from  be¬ 
ing  compelled,  in  any  criminal  case,  to  be  a  witness  against 
himself,  or  from  being  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law.  This  also  is  but  an  affirm¬ 
ance  of  a  common-law  privilege.  But  it  is  of  inestimable 
value.  It  is  well  known,  that  in  some  countries,  not  only 
are  criminals  compelled  to  give  evidence  against  them¬ 
selves  ;  but  they  are  subjected  to  the  rack  or  torture,  in  or¬ 
der  to  procure  a  confession  of  guilt.  And  what  is  worse,  it 
has  been  (as  if  in  mockery  or  scorn)  attempted  to  excuse 
or  justify  it,  upon  the  score  of  mercy  and  humanity  to  the 
accused.  It  has  been  contrived,  (it  is  pretended,)  that 
innocence  should  manifest  itself  by  a  stout  resistance,  or 
guilt  by  a  plain  confession  ;  as  if  a  man’s  innocence  were 
to  be  tried  by  the  hardness  of  his  constitution,  and  his 
guilt  by  the  sensibility  of  his  nerves  !  Cicero,  many  ages 
ago,  although  he  lived  in  a  state,  wherein  it  was  usual  to 
put  slaves  to  the  torture,  in  order  to  furnish  evidence,  has 
denounced  the  absurdity  and  wickedness  of  the  measure 
in  terms  of  glowing  eloquence,  as  striking,  as  they  are 
brief.  They  are  conceived  in  the  spirit  of  Tacitus,  and 
breathe  all  his  pregnant  and  indignant  sarcasm.  Ulpian, 
also,  at  a  still  later  period  in  Roman  jurisprudence, 
stamped  the  practice  with  severe  reproof. 

§  393.  The  other  part  of  the  clause  is  but  an  enlarge¬ 
ment  of  the  language  of  Magna  Charta  ;  cc  Neither  will  we 
pass  upon  him,  or  condemn  him,  but  by  the  lawful  judge¬ 
ment  of  his  peers,  or  by  the  law  of  the  land.”  Lord  Coke 
says,  that  these  latter  words,  ct  by  the  law  of  the  land,” 
mean,  by  due  process  of  law  ;  that  is,  without  due  pre¬ 
sentment  or  indictment,  and  being  brought  in  to  answer 
thereto  by  due  process  of  the  common  law.  So  that  this 
clause,  in  effect,  affirms  the  right  of  trial,  according  to  the 
process  and  proceedings  of  the  common  law. 

§  394.  The  concluding  clause  is,  that  private  property 
shall  not  be  taken  for  public  use  without  just  compensa¬ 
tion.  This  is  an  affirmance  of  a  great  doctrine  established 

20* 


234  CONSTITUTION  OF  THE  UNITED  STATES. 

by  the  common  law,  for  the  protection  of  private  proper¬ 
ty.  It  is  founded  in  natural  equity,  and  is  laid  down  by 
jurists  as  a  principle  of  universal  law7.  Indeed,  in  a  free 
government,  almost  all  other  rights  would  become  utterly 
worthless,  if  the  government  possessed  an  uncontrollable 
power  over  the  private  fortune  of  every  citizen.  One  of 
the  fundamental  objects  of  every  good  government  must 
be,  the  due  administration  of  justice  ;  and  how  vain  it 
would  be,  to  speak  of  such  an  administration,  where  all 
property  is  subject  to  the  will  or  caprice  of  the  legislature 
and  the  rulers  ! 

§  395.  The  other  article,  in  declaring,  that  the  accused 
shall  enjoy  the  right  to  a  speedy  and  public  trial,  by  an 
impartial  jury  of  the  State  or  district,  wherein  the  crime 
shall  have  been  committed,  (which  district  shall  be  pre¬ 
viously  ascertained  by  law,)  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation,  and  to  be  confronted 
with  the  witnesses  against  him,  does  but  follow  out  the 
established  course  of  the  common  law  in  all  trials  for 
crimes.  The  trial  is  always  public  ;  the  witnesses  are 
sworn,  and  give  in  their  testimony,  (at  least  in  capital  ca¬ 
ses,)  in  the  presence  of  the  accused  ;  the  nature  and  cause 
of  the  accusation  is  accurately  laid  down  in  the  indictment; 
and  the  trial  is  at  once  speedy,  impartial,  and  in  the  dis¬ 
trict  where  the  offence  is  charged  to  be  committed.  With¬ 
out  in  any  measure  impugning  the  propriety  of  these  pro¬ 
visions,  it  may  be  suggested,  that  there  seems  to  have  been 
an  undue  solicitude  to  introduce  into  the  Constitution  some 
of  the  general  guards  and  proceedings  of  the  common  law 
in  criminal  trials,  (truly  admirable  in  themselves,)  without 
sufficiently  adverting  to  the  consideration,  that,  unless  the 
whole  system  is  incorporated,  and  especially  the  law  of 
evidence,  a  corrupt  legislature,  or  a  debased  and  servile 
people,  may  render  the  whole  little  more  than  a  solemn 
pageantry.  If,  on  the  other  hand,  the  people  are  enlight¬ 
ened,  and  honest,  and  zealous  in  defence  of  their  rights  and 
liberties,  it  will  be  impossible  to  surprise  them  into  a  sur¬ 
render  of  a  single  valuable  appendage  of  the  trial  by  jury. 

§  396.  The  remaining  clauses  are  of  more  direct  sig¬ 
nificance,  and  necessity.  The  accused  is  entitled  to  have 


TRIAL  BY  JURY. 


235 


compulsory  process  for  obtaining  witnesses  in  his  favor, 
and  to  have  the  assistance  of  counsel.  A  very  short  re¬ 
view  of  the  state  of  the  common  law,  on  these  points,  will 
put  their  propriety  beyond  question.  In  the  first  place, 
it  was  an  anciently  and  commonly-received  practice,  de¬ 
rived  from  the  civil  law,  and  which  Mr.  Justice  Black- 
stone  says,  in  his  day,  still  obtained  in  France,  although, 
since  the  Revolution,  it  has  been  swept  away,  not  to  suffer 
the  party  accused  in  capital  cases  to  exculpate  himself 
by  the  testimony  of  any  witnesses.  Of  this  practice,  the 
courts  grew  so  heartily  ashamed  from  its  unreasonable  and 
oppressive  character,  that  another  practice  was  gradually 
introduced,  of  examining  witnesses  for  the  accused,  but 
not  upon  oath  ;  the  consequence  of  which  was,  that  the  ju¬ 
ry  gave  less  credit  to  this  latter  evidence,  than  to  that  pro¬ 
duced  by  the  government.  Sir  Edward  Coke  denounced 
the  practice  as  tyrannical  and  unjust ;  and  contended  that, 
in  criminal  cases,  the  party  accused  was  entitled  to  have 
witnesses  sworn  for  him.  The  House  of  Commons,  soon 
after  the  accession  of  the  house  of  Stuart  to  the  throne  of 
England,  insisted,  in  a  particular  bill  then  pending,  and, 
against  the  efforts  both  of  the  Crown  and  the  House  of 
Lords,  carried  a  clause  affirming  the  right,  in  cases  tried 
under  that  act,  of  witnesses  being  sworn  for,  as  well  as 
against,  the  accused.  By  the  statute  of  7  Will.  3,  ch. 
3,  the  same  measure  of  justice  was  established  throughout 
the  realm  in  cases  of  treason  ;  and  afterwards,  in  the 
reign  of  Queen  Anne,  the  like  rule  was  extended  to  all 
cases  of  treason  and  felony.  The  right  seems  never  to 
have  been  doubted,  or  denied,  in  cases  of  mere  misde¬ 
meanors.  For  what  causes,  and  upon  what  grounds,  this 
distinction  was  maintained,  or  even  excused,  it  is  impos¬ 
sible  to  assign  any  satisfactory,  or  even  plausible  reason¬ 
ing.  Surely,  a  man’s  life  must  be  of  infinitely  more  value 
than  any  subordinate  punishment  ;  and  if  he  might  protect 
himself  against  the  latter,  by  proofs  of  his  innocence,  there 
would  seem  to  be  irresistible  reasons  for  permitting  him 
to  do  the  same  in  capital  offences.  The  common  sug¬ 
gestion  has  been,  that,  in  capital  cases,  no  man  could,  or 
rather  ought,  to  be  convicted,  unless  upon  evidence  so 


236  CONSTITUTION  OF  THE  UNITED  STATES. 


conclusive  and  satisfactory,  as  to  be  above  contradiction 
or  doubt.  But  who  can  say,  whether  it  be  in  any  case 
so  high,  until  all  the  proofs  in  favor,  as  well  as  against, 
the  party  have  been  heard  ?  Witnesses  for  the  govern¬ 
ment  may  swear  falsely,  and  directly  to  the  matter  in 
charge  ;  and,  until  opposing  testimony  is  heard,  there  may 
not  be  the  slightest  ground  to  doubt  its  truth  ;  and  yet, 
when  such  is  heard,  it  may  be  incontestable,  that  it  is 
wholly  unworthy  of  belief.  The  real  fact  seems  to  be, 
that  the  practice  was  early  adopted  into  the  criminal  law 
in  capital  eases,  in  which  the  crown  was  supposed  to  take 
a  peculiar  interest,  in  base  subserviency  to  the  wishes  of 
the  latter.  It  is  a  reproach  to  the  criminal  jurisprudence 
of  England,  which  the  State  trials,  antecedently  to  the 
revolution  of  1683,  but  too  strongly  sustain.  They  are 
crimsoned  with  the  blood  of  persons,  who  were  condemned 
to  death,  not  only  against  law,  but  against  the  clearest 
rules  of  evidence. 

§  397.  Another  anomaly  in  the  common  law,  is,  that  in 
capital  cases,  the  prisoner  is  not,  upon  his  trial  upon  the 
general  issue,  entitled  to  have  counsel,  unless  some  mat¬ 
ter  of  law  shall  arise,  proper  to  be  debated.  That  is,  in 
other  words,  that  he  shall  not  have  the  benefit  of  the  tal¬ 
ents  and  assistance  of  counsel  in  examining  the  witnesses 
or  making  his  defence  before  the  jury.  Mr.  Justice 
Blackstone,  with  all  his  habitual  reverence  for  the  institu¬ 
tions  of  English  jurisprudence,  as  they  actually  exist, 
speaks  out  upon  this  subject  with  the  free  spirit  of  a  pa¬ 
triot  and  a  jurist.  This  (he  says)  is  u  a  rule,  which,  how¬ 
ever  it  may  be  palliated  under  cover  of  that  noble  declar¬ 
ation  of  the  law,  when  rightly  understood,  that  the  judge 
shall  be  counsel  for  the  prisoner,  that  is,  shall  see,  that 
the  proceedings  against  him  are  legal,  and  strictly  regular, 
seems  to  be  not  all  of  a  piece  with  the  rest  of  the  humane 
treatment  of  prisoners  by  the  English  law.  For,  upon 
what  face  of  reason,  can  that  assistance  be  denied  to  save 
the  life  of  a  man,  which  is  yet  allowed  him  in  prosecu¬ 
tions  for  every  petty  trespass.”  The  defect  has  indeed 
been  cured  in  England  in  cases  of  treason  ;  but  it  remain¬ 
ed  unprovided  for  in  all  other  cases,  to,  what  one  can 


SEARCH  WARRANTS. 


237 


hardly  help  deeming,  the  discredit  of  the  free  genius  of 
the  English  Constitution,  until  a  very  recent  period. 

§  393.  The  wisdom  of  both  of  these  provisions  is, 
therefore,  manifest,  since  they  make  matter  of  constitu¬ 
tional  right,  what  the  common  law  had  left  in  a  most  im¬ 
perfect  and  questionable  state.  The  right  to  have  wit¬ 
nesses  sworn,  and  counsel  employed  for  the  prisoner,  are 
scarcely  less  important  privileges,  than  the  right  of  a  trial 
by  jury.  The  omission  of  them  in  the  Constitution  is  a 
matter  of  surprise  ;  and  their  present  incorporation  into  it 
is  matter  of  honest  congratulation  among  all  the  friends 
of  rational  liberty. 

§  399.  We  may  bring  also  into  view,  in  this  place,  two 
other  amendments  of  the  Constitution,  connected  with 
the  subject  of  crimes.  One  is  designed  to  guard  the 
citizens  from  unreasonable  and  illegal  searches  of  their 
persons,  houses,  papers,  and  effects,  without  probable 
cause  of  the  commission  of  any  offence  ;  the  other  is,  to 
prevent  Congress,  as  well  as  the  courts,  from  inflicting 
excessive  and  cruel  punishments.  The  first  is  ;  u  The 
right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and 
seizures,  shall  not  be  violated.  And  no  warrants  shall 
issue,  but  upon  probable  cause,  supported  by  oath  or  af¬ 
firmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  person  or  things  to  be  seized.”  A 
warrant  is  a  writ,  or  process  under  seal,  issued  by  some 
court  or  magistrate,  for  the  arrest  of  a  person,  who  is  ac¬ 
cused  on  oath  of  some  public  offence  or  misdemeanor, 
requiring  the  officer,  to  whom  it  is  directed,  to  arrest  the 
offender,  and  to  bring  him  before  the  court  or  magistrate, 
to  answer  for  the  offence,  and  otherwise  to  be  dealt  with 
according  to  law.  Sometimes  such  warrants  include,  not 
only  an  authority  to  arrest  the  person,  but  also,  in  cases 
where  the  accusation  is  for  stealing  goods,  authority  to 
search  the  dwelling  house,  or  other  place  of  abode,  of  the 
party,  for  the  stolen  goods,  and  hence  the  latter  are  com¬ 
monly  called  search-warrants.  Formerly,  search-war¬ 
rants,  in  a  general  form,  were  issued  from  the  State  De¬ 
partment  in  England,  authorizing  officers  to  search  houses 


238  CONSTITUTION  OF  THE  UNITED  STATES. 

and  persons,  without  naming  any  persons  or  places  in  par¬ 
ticular,  so  that,  under  color  of  such  warrants,  every  man’s 
house  in  the  kingdom  might,  at  the  mere  discretion  of  such 
officers,  he  searched,  without  any  ground  of  accusation. 
Such  warrants  were,  however,  held  illegal  by  the  courts 
of  justice  in  England.  And  this  amendment  not  only 
pronounces  them  illegal  ;  but  prohibits  Congress  from 
passing  any  laws  to  give  them  effect. 

§  400.  The  second  amendment  is  ;  u  Excessive  bail 
shall  not  be  required  ;  nor  excessive  fines  imposed  ;  nor 
cruel  and  unusual  punishments  inflicted.”  This  amend¬ 
ment  may,  at  first  sight,  be  thought  superfluous.  It  is, 
however,  an  exact  transcript  of  a  clause  in  the  Bill  of 
Rights,  passed  and  ratified  in  the  great  Revolution  of 
1688,  in  England.  It  was  thought,  at  that  time,  to  be  a 
most  important  constitutional  provision  for  the  security 
of  the  people  against  the  wilful  oppression  of  their  rulers. 
The  history  of  former  ages  had,  indeed,  taught  the  people 
the  necessity  of  some  such  guards  against  the  vindictive¬ 
ness  and  the  cruelty  of  the  supple  dependents  of  the 
Crown.  In  the  arbitrary  reigns  of  some  of  the  princes 
of  the  house  of  Stuart,  demands  had  often  been  made  of 
excessive  bail  against  persons,  who  were  odious  to  the 
Court  or  its  favorites  ;  and  on  failing  to  procure  such  bail, 
(as  often  occurred,)  they  wTere  committed  to  prison,  and 
remained  there  for  long  periods,  and  always  during  the 
pleasure  of  the  Crown.  Enormous  fines  and  assessments 
were  also  sometimes  imposed  by  judges  and  magistrates, 
and  cruel  and  vindictive  punishments  were  inflicted,  with  a 
view  to  gratify  the  resentments  of  the  prosecutors,  or  to 
subdue  the  unhappy  victims  to  the  will  of  their  oppressors. 
The  provision  may  now  seem  to  be  unnecessary,  under 
our  free  Constitution,  since  it  may  be  thought  scarcely 
possible,  that  any  department  of  our  Government  should 
authorize  or  justify  such  atrocious  conduct.  But  the 
clause  holds  out  a  wise  admonition  to  all  departments  of 
the  National  Government,  to  warn  them  against  such  vio¬ 
lent  proceedings,  and  to  instruct  them  in  the  duties  of 
clemency  and  moderation.  A  barrier  is  thus  interposed 
against  the  use  of  those  vindictive  and  atrocious  punish- 


TREASON. 


239 


ments,  which  in  former  ages  have  disgraced  the  annals  of 
many  nations. 

§  401.  The  third  section  of  the  third  article,  contains 
the  definition  of  treason,  a  crime,  which  is  very  apt  to  rouse 
public  resentment,  and,  in  times  of  party  and  political  ex¬ 
citement,  to  be  extended  by  construction  to  embrace  acts 
of  very  slight  misconduct,  and  even  of  an  innocent  char¬ 
acter.  Free  governments,  as  well  as  despotic  govern¬ 
ments,  have  too  often  been  guilty  of  the  most  outrageous 
injustice  to  their  own  citizens  and  subjects,  upon  accusa¬ 
tions  of  this  sort.  They  have  been  ready  to  accuse,  upon 
the  most  unsatisfactory  evidence,  and  to  convict,  upon  the 
most  slender  proofs,  some  of  their  most  distinguished  and 
virtuous  statesmen,  as  well  as  persons  of  inferior  char¬ 
acter.  They  have  inflamed  into  the  criminality  of  treason 
acts  of  just  resistance  to  tyranny  ;  and  tortured  a  manly 
freedom  of  opinion  into  designs  subversive  of  the  govern¬ 
ment.  To  guard  against  the  recurrence  of  these  evils, 
the  Constitution  has  declared,  u  Treason  against  the 
United  States  shall  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort.  No  person  shall  be  convicted  of  treason, 
unless  on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court.”  “  The  Congress 
shall  have  power  to  declare  the  punishment  of  treason. 
But  no  attainder  of  treason  shall  work  corruption  of  blood, 
or  forfeiture,  except  during  the  life  of  the  person  attainted.” 

§  402.  Treason  is  generally  deemed  the  highest  crime, 
which  can  be  committed  in  civil  society,  since  its  aim  is 
an  overthrow  of  the  government,  and  a  public  resistance 
of  its  powers  by  force.  Its  tendency  is  to  create  univer¬ 
sal  danger  and  alarm  ;  and  on  this  account,  it  is  peculiarly 
odious,  and  often  visited  with  the  deepest  public  resent¬ 
ment.  Even  a  charge  of  this  nature,  made  against  an 
individual,  is  deemed  so  opprobrious,  that,  whether  just 
or  unjust,  it  subjects  him  to  suspicion  and  hatred  ;  and, 
in  times  of  high  political  excitement,  acts  of  a  very  sub¬ 
ordinate  nature  are  often,  by  popular  prejudices,  as  well 
as  by  royal  resentment,  magnified  into  this  fatal  enormity. 
It  is,  therefore,  of  very  great  importance,  that  its  true 


240  CONSTITUTION  OF  THE  UNITED  STATES. 

nature  and  limits  should  be  exactly  ascertained  ;  and  Mon¬ 
tesquieu  was  so  sensible  of  it,  that  he  has  not  scrupled 
to  declare,  that  if  the  crime  of  treason  be  indeterminate, 
that  alone  is  sufficient  to  make  any  government  degen¬ 
erate  into  arbitrary  power.  The  history  of  England  it¬ 
self  is  full  of  melancholy  instruction  on  this  subject.  By 
the  ancient  common  law,  it  was  left  very  much  to  discre¬ 
tion  to  determine,  what  acts  were,  and  what  were  not,  trea¬ 
son  ;  and  the  judges  of  those  times,  holding  office  at  the 
pleasure  of  the  Crown,  became  but  too  often  the  instru¬ 
ments,  in  its  hands,  of  foul  injustice.  At  the  instance  of 
tyrannical  princes,  they  had  abundant  opportunities  to  cre¬ 
ate  constructive  treasons  ;  that  is,  by  forced  and  arbitrary 
constructions,  to  raise  offences  into  the  guilt  and  punishment 
of  treason,  which  were  not  suspected  to  be  such.  The 
grievance  of  these  constructive  treasons  was  so  enormous, 
and  so  often  weighed  down  the  innocent,  and  the  patriotic, 
that  it  was  found  necessary,  as  early  as  the  reign  of  Ed¬ 
ward  the  Third,  for  Parliament  to  interfere,  and  arrest  it, 
by  declaring  and  defining  all  the  different  branches  of 
treason.  This  statute  has  ever  since  remained  the  pole 
star  of  English  jurisprudence  upon  this  subject.  And, 
although,  upon  temporary  emergencies,  and  in  arbitrary 
reigns,  since  that  period,  other  treasons  have  been  crea¬ 
ted,  the  sober  sense  of  the  nation  has  generally  abrogated 
them,  or  reduced  their  power  within  narrow  limits. 

§  403.  Nor  have  republics  been  exempt  from  violence 
and  tyranny  of  a  similar  character.  It  has  been  justly 
remarked,  that  new-fangled  and  artificial  treasons  have 
been  the  great  engines,  by  which  violent  factions,  the 
natural  offspring  of  free  governments,  have  usually  wreak¬ 
ed  their  alternate  malignity  on  each  other. 

§  404.  It  was  under  the  influence  of  these  admonitions, 
furnished  by  history  and  human  experience,  that  the  Con¬ 
vention  deemed  it  necessary  to  interpose  an  impassable 
barrier  against  arbitrary  constructions,  either  by  the  courts, 
or  by  Congress,  upon  the  crime  of  treason.  It  confines 
it  to  two  species  ;  first,  the  levying  of  war  against  the 
United  States  ;  and,  secondly,  adhering  to  their  enemies, 
giving  them  aid  and  comfort.  In  so  doing,  they  have 


TREASON. 


241 


adopted  the  very  words  of  the  Statute  of  Treason,  of 
Edward  the  Third  ;  and  thus,  by  implication,  in  order  to 
cut  off,  at  once,  all  chances  of  arbitrary  constructions, 
they  have  recognized  the  well-settled  interpretation  of 
these  phrases  in  the  administration  of  criminal  law,  which 
has  prevailed  for  ages. 

§  405.  The  other  part  of  the  clause,  requiring  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  a 
confession  in  open  court ,  to  justify  a  conviction,  is  found¬ 
ed  upon  the  same  reasoning.  A  like  provision  exists  in 
British  jurisprudence,  founded  upon  the  same  great  policy 
of  protecting  men  against  false  testimony  and  unguarded 
confessions,  to  their  utter  ruin.  It  has  been  well  remark¬ 
ed,  that  confessions  are  the  weakest  and  most  suspicious 
of  all  testimony;  ever  liable  to  be  obtained  by  artifice, 
false  hopes,  promises  of  favor,  or  menaces ;  seldom 
remembered  accurately,  or  reported  with  due  precision  ; 
and  incapable,  in  their  nature,  of  being  disproved  by  other 
negative  evidence.  To  which  it  may  be  added,  that  they 
are  easy  to  be  forged,  and  the  most  difficult  to  guard  against. 
An  unprincipled  demagogue,  or  a  corrupt  courtier,  might 
otherwise  hold  the  lives  of  the  purest  patriots  in  his  hands, 
without  the  means  of  proving  the  falsity  of  the  charge,  if 
a  secret  confession,  uncorroborated  by  other  evidence, 
would  furnish  a  sufficient  foundation  and  proof  of  guilt. 
And  wisely,  also,  has  the  Constitution  declined  to  suffer 
the  testimony  of  a  single  witness,  however  high,  to  be 
sufficient  to  establish  such  a  crime,  which  rouses  at  once 
against  the  victim  private  honor  and  public  hostility. 
There  must,  as  there  should,  be  a  concurrence  of  two 
witnesses  to  the  same  overt  act,  that  is,  to  the  same  open 
act  of  treason,  who  are  above  all  reasonable  exception. 

§  406.  The  subject  of  the  power  of  Congress  to  de¬ 
clare  the  punishment  of  treason,  and  the  consequent  disa¬ 
bilities,  have  been  already  commented  on  in  another  place. 

§  407.  We  have  thus  passed  in  review  all  those  pro¬ 
visions  of  the  Constitution,  which  concern,  the  establish¬ 
ment,  jurisdiction,  and  duties,  of  the  judicial  department ; 
and  the  rights  and  privileges  of  the  citizens,  connected 
with  the  administration  of  public  justice. 

21 


XIII. 


242  CONSTITUTION  OF  THE  UNITED  STATES. 


CHAPTER  XXXIII. 

Privileges  of  Citizens. — Fugitive  Criminals  and  Slaves. 

§  408.  The  fourth  article  of  the  Constitution  contains 
several  important  subjects,  some  of  which  have  been  al¬ 
ready  considered.  Among  those,  which  have  been  so 
considered,  are,  the  clauses  which  respect  the  faith 
and  credit  to  be  given  to  the  acts,  records,  judgements, 
and  proceedings,  of  the  different  States,  and  the  mode  of 
proving  them,  and  the  effect  thereof ;  the  admission  of 
new  States  into  the  Union  ;  and  the  regulation  and  disposal 
of  the  territory,  and  other  property,  of  the  United  States. 

§  409.  Among  those,  which  remain  for  consideration, 
the  first  is,  u  The  citizens  of  each  State  shall  be  entitled 
to  all  privileges  and  immunities  of  citizens  in  the  several 
States.”  It  is  obvious,  that  if  the  citizens  of  the  different 
States  were  to  be  deemed  aliens  to  each  other,  they  could 
not  inherit,  or  hold,  or  purchase  real  estate,  or  possess 
any  political  or  municipal  privileges  in  any  other  State, 
than  that,  in  which  they  were  born.  And  the  States 
would  be  at  liberty  to  make  laws,  giving  preferences  of 
rights  and  offices,  and  even  privileges  in  trade  and  busi¬ 
ness,  to  those,  who  were  Natives,  overall  other  persons, 
who  belonged  to  other  States  ;  or  they  might  make  in¬ 
vidious  discriminations  between  the  citizens  of  different 
States.  Such  a  power  would  have  a  tendency  to  gene¬ 
rate  jealousies  and  discontents,  injurious  to  the  harmony 
of  all  the  States.  And,  therefore,  the  Constitution  has 
wisely  created,  as  it  were,  a  general  citizenship,  com¬ 
municating  to  the  citizens  of  each  State,  who  have  their 
domicil  in  another,  all  the  privileges  and  immunities  en¬ 
joyed  by  the  citizens  of  the  latter. 

§  410.  The  next  clause  is,  “A  person,  charged  in 
any  State  with  treason,  felony,  or  other  crime,  who  shall 
flee  from  justice,  and  be  found  in  another  State,  shall,  on 
demand  of  the  Executive  authority  of  the  State,  from 


FUGITIVE  CRIMINALS  AND  SLAVES. 


243 


which  he  fled,  be  delivered  up,  to  be  removed  to  the 
State,  having  jurisdiction  of  the  crime.”  As  doubts  have 
existed,  whether,  by  the  law  of  nations,  a  surrender  of 
fugitives  from  justice  can  lawfully  be  demanded  from  the 
government  of  the  country,  where  they  seek  an  asylum, 
there  is  great  propriety  in  making  this  a  positive  right,  in 
regard  to  the  several  States  composing  the  United  States. 
It  is  for  their  mutual  benefit,  convenience,  and  safety.  It 
will  promote  harmony  and  good  feeling  between  them. 
It  will  also  add  strength  to  a  great  moral  duty,  and  ope¬ 
rate  indirectly  to  the  suppression  of  crimes  ;  and  finally, 
it  will  thus  increase  the  public  sense  of  the  blessings  of 
the  National  Government. 

§  411.  The  next  clause  is,  “No  person  held  to  ser¬ 
vice  or  labor  in  one  State,  under  the  laws  thereof,  escap¬ 
ing  into  another,  shall,  in  consequence  of  any  law  or  regu¬ 
lation  therein,  be  discharged  from  such  service  or  labor  ; 
but  shall  be  delivered  up,  on  the  claim  of  the  party  to 
whom  such  service  or  labor  may  be  due.”  This  clause 
was  introduced  into  the  Constitution  solely  for  the  benefit 
of  the  slave-holding  States,  to  enable  them  to  reclaim 
their  fugitive  slaves,  who  should  escape  into  other  States, 
where  slavery  is  not  tolerated.  It  is  well  known,  that, 
at  the  common  law,  a  slave  escaping  into  a  State,  where 
slavery  is  not  allowed,  would  immediately  become  free, 
and  could  not  be  reclaimed.  Before  the  Constitution 
was  adopted,  the  Southern  States  felt  the  want  of  some 
protecting  provision  against  such  an  occurrence  to  be  a 
grievous  injury  to  them.  And  we  here  see,  that  the 
Eastern  and  Middle  States  have  sacrificed  their  own  opin¬ 
ions  and  feelings,  in  order  to  take  away  every  source  of 
jealousy,  on  a  subject  so  delicate  to  Southern  interests  ; 
a  circumstance,  sufficient  of  itself,  to  repel  the  delusive 
notion,  that  the  South  has  not,  at  all  times,  had  its  full 
share  in  the  blessings  resulting  from  the  Union. 


244  CONSTITUTION  OF  THE  UNITED  STATES. 


CHAPTER  XXXIV. 

Guarantee  of  Republican  Government. — Mode  of  mak¬ 
ing  Amendments. 

§  412.  The  fourth  section  of  the  fourth  article  de¬ 
clares,  u  The  United  States  shall  guaranty  to  every 
State  in  this  Union  a  republican  form  of  Government  ; 
and  shall  protect  each  of  them  against  invasion  ;  and,  on 
application  of  the  Legislature,  or  of  the  Executive,  when 
the  Legislature  cannot  be  convened,  against  domestic 
violence.”  The  propriety  of  this  provision  will  scarcely 
be  doubted.  If  any  of  the  States  were  to  be  at  liberty 
to  adopt  any  other  form  of  Government,  than  a  repub¬ 
lican  form,  it  would  necessarily  endanger,  and  might 
destroy,  the  safety  of  the  Union.  Suppose,  for  instance, 
a  great  State,  like  New  York,  should  adopt  a  monarchical 
form  of  government,  it  might,  under  an  enterprising  and 
ambitious  king,  become  formidable  to,  if  not  destructive 
of,  the  Constitution.  And  the  people  of  each  State 
have  a  right  to  protection  against  the  tyranny  of  a  domestic 
faction,  and  to  have  a  firm  guarantee,  that  their  political 
liberties  shall  not  be  overturned  by  a  successful  dema¬ 
gogue,  who  shall  arrive  at  power  by  corrupt  arts,  and  then 
plan  a  scheme  for  permanent  possession  of  it.  On  the 
*  other  hand,  domestic  violence  by  popular  insurrection  is 
equally  repugnant  to  the  good  order  and  safety  of  the 
Union  ;  and  one  of  the  blessings  arising  from  a  National 
Government  is  the  security  which  it  affords,  against  a 
recurrence  of  evils  of  this  sort.  Accordingly,  it  is  made 
an  imperative  duty  of  the  General  Government,  on  the 
application  of  the  Legislature  or  Executive  of  a  State,  to 
aid  in  the  suppression  of  such  domestic  insurrections  ;  as 
well  as  to  protect  the  State  from  foreign  invasion. 

§  413.  It  may  possibly  be  asked,  what  need  there 
could  be  of  such  a  precaution,  and  whether  it  may  not 
become  a  pretext  for  alterations  in  the  State  governments, 


GUARANTEE  OF  REPUBLICAN  GOVERNMENT.  245 


without  the  concurrence  of  the  States  themselves.  These 
questions  admit  of  ready  answers.  If  the  interposition  of 
the  General  Government  should  not  be  needed,  the  pro¬ 
vision  for  such  an  event  will  be  a  harmless  superfluity 
only  in  the  Constitution.  But,  who  can  say,  what  ex¬ 
periments  may  be  produced  by  the  caprice  of  particular 
States,  by  the  ambition  of  enterprising  leaders,  or  by  the 
intrigues  and  influence  of  foreign  powers  ?  To  the  sec¬ 
ond  question,  it  may  be  answered,  that  if  the  General 
Government  should  interpose,  by  virtue  of  this  constitu¬ 
tional  authority,  it  will,  of  course,  be  bound  to  pursue  the 
authority.  But  the  authority  extends  no  further  than  to  a 
guarantee  of  a  republican  form  of  Government,  which 
supposes  a  pre-existing  Government  of  the  form,  which 
is  to  be  guarantied.  As  long,  therefore,  as  the  existing 
republican  forms  are  continued  by  the  States,  they  are 
guarantied  by  the  Federal  Constitution.  Whenever  the 
States  may  choose  to  substitute  other  republican  forms, 
they  have  a  right  to  do  so,  and  to  claim  the  federal  guar¬ 
antee  for  the  latter.  The  only  restriction  imposed  on 
them  is,  that  they  shall  not  exchange  republican  for  anti¬ 
republican  Constitutions  :  a  restriction,  which,  it  is  pre¬ 
sumed,  will  hardly  be  considered  as  a  grievance. 

§  414.  At  first  view,  it  might  seem  not  to  square 
with  the  republican  theory,  to  suppose,  either  that  a  ma¬ 
jority  have  not  the  right,  or  that  a  minority  will  have  the 
force,  to  subvert  a  government  ;  and,  consequently,  that 
the  National  interposition  can  never  be  required,  but  when 
it  would  be  improper.  But  theoretic  reasoning  in  this  case, 
as  in  most  other  cases,  must  be  qualified  by  the  lessons 
of  practice.  Why  may  not  illicit  combinations,  for  pur¬ 
poses  of  violence,  be  formed,  as  well  by  a  majority  of  a 
State,  especially  of  a  small  State,  as  by  a  majority  of  a 
county,  or  of  a  district  of  the  same  State  ;  and  if  the  au¬ 
thority  of  the  State  ought,  in  the  latter  case,  to  protect  the 
local  magistracy,  ought  not  the  National  authority,  in  the 
former,  to  support  the  State  authority  ?  Besides  ;  there 
are  certain  parts  of  the  State  Constitutions,  which  are  so 
interwoven  with  the  National  Constitution,  that  a  violent 
blow  cannot  be  given  to  the  one,  without  communicating 

Aaf  L 


246  CONSTITUTION  OF  THE  UNITED  STATES. 

the  wound  to  the  other.  Insurrections  in  a  State  will 
rarely  induce  a  National  interposition,  unless  the  number 
concerned  in  them  bear  some  proportion  to  the  friends  of 
Government.  It  will  be  much  better,  that  the  violence 
in  such  cases,  should  be  repressed  by  the  superintending 
power,  than  that  the  majority  should  be  left  to  maintain 
their  cause  by  a  bloody  and  obstinate  contest.  The  ex¬ 
istence  of  a  right  to  interpose  will  generally  prevent  the 
necessity  of  exerting  it. 

§415.  The  next  (the  fifth)  article,  provides  for  the 
mode  of  making  amendments  to  the  Constitution.  u  The 
Congress,  whenever  two  thirds  of  both  Houses  shall  deem 
it  necessary,  shall  propose  amendments  to  this  Constitu¬ 
tion  ;  or,  on  application  of  the  Legislatures  of  two  thirds 
of  the  several  States,  shall  call  a  Convention  for  proposing 
amendments  ;  which,  in  either  case,  shall  be  valid,  to  all 
intents  and  purposes,  as  part  of  this  Constitution,  when 
ratified  by  the  Legislatures  of  three  fourths  of  the  several 
States,  or  by  conventions  in  three  fourths  thereof,  as  the 
one,  or  the  other  mode  of  ratification  may  be  proposed  by 
the  Congress  ;  provided  that  no  amendment,  which  may 
be  made  prior  to  the  year  one  thousand  eight  hundred 
and  eight,  shall  in  any  manner  affect  the  first  and  fourth 
clauses  in  the  ninth  section  of  the  first  article  ;  and  that 
no  State,  without  its  consent,  shall  be  deprived  of  its  equal 
suffrage  in  the  Senate.” 

§  416.  The  importance  of  this  power  can  scarcely  be 
over  estimated.  It  is  obvious,  that  no  human  govern¬ 
ment  can  ever  be  perfect  ;  and  it  is  impossible  to  foresee, 
or  guard  against  all  the  exigencies,  which  may,  in  different 
ages,  require  changes  in  the  powers  and  modes  of  opera¬ 
tion  of  a  government,  to  suit  the  necessities  and  interests 
of  the  people.  A  government,  which  has  no  mode  pre¬ 
scribed  for  any  changes,  will,  in  the  lapse  of  time,  become 
utterly  unfit  for  the  nation.  It  will  either  degenerate  into 
a  despotism,  or  lead  to  a  revolution,  by  its  oppressive 
inequalities.  It  is  wise,  therefore,  in  every  government, 
and  especially  in  a  republic,  to  provide  peaceable  means 
for  altering  and  improving  the  structure,  as  time  and  ex¬ 
perience  shall  show  it  necessary,  for  the  public  safety  and 


GUARANTEE  OF  REPUBLICAN  GOVERNMENT.  247 


happiness.  But,  at  the  same  time,  it  is  equally  important 
to  guard  against  too  easy  and  frequent  changes  ;  to  secure 
due  deliberation  and  caution  in  making  them  ;  and  to 
follow  experience,  rather  than  speculation  and  theory. 
A  government,  which  is  always  changing  and  changeable, 
is  in  a  perpetual  state  of  internal  agitation,  and  incapable 
of  any  steady  and  permanent  operations.  It  has  a  con¬ 
stant  tendency  to  confusion  and  anarchy. 

§  417.  In  regard  to  the  Constitution  of  the  United 
States,  it  is  confessedly  a  new  experiment  in  the  history 
of  nations.  Its  framers  were  not  bold  or  rash  enough  to 
believe,  or  to  pronounce,  it  to  be  perfect.  They  made 
use  of  the  best  lights,  which  they  possessed,  to  form  and 
adjust  its  parts,  and  mould  its  materials.  But  they  knew, 
that  time  might  develope  many  defects  in  its  arrange¬ 
ments,  and  many  deficiencies  in  its  powers.  They  de¬ 
sired,  that  it  might  be  open  to  improvement  ;  and,  under 
the  guidance  of  the  sober  judgement  and  enlightened  skill 
of  the  country,  to  be  perpetually  approaching  nearer  and 
nearer  to  perfection.  It  was  obvious,  too,  that  the  means 
of  amendment  might  avert,  or  at  least  have  a  tendency  to 
avert,  the  most  serious  perils,  to  which  confederated 
republics  are  liable,  and  by  which  all  have  hitherto  been 
shipwrecked.  They  knew,  that  the  besetting  sin  of  re¬ 
publics  is  a  restlessness  of  temperament,  and  a  spirit  of 
discontent  at  slight  evils.  They  knew  the  pride  and 
jealousy  of  state  power  in  confederacies  ;  and  they 
wished  to  disarm  them  of  their  potency,  by  providing  a 
safe  means  to  break  the  force,  if  not  wholly  to  ward  off 
the  blows,  which  would,  from  time  to  time,  under  the 
garb  of  patriotism,  or  a  love  of  the  people,  be  aimed  at 
the  Constitution.  They  believed,  that  the  power  of 
amendment  was,  if  one  may  so  say,  the  safety-valve  to 
let  off  all  temporary  effervescences  and  excitements  ;  and 
the  real  effective  instrument  to  control  and  adjust  the 
movements  of  the  machinery,  when  out  of  order,  or  in 
danger  of  self-destruction. 

§  418.  Upon  the  propriety  of  the  power,  in  some 
form,  there  will  probably  be  little  controversy.  The 
only  question  is,  whether  it  is  so  arranged,  as  to  accom- 


248  CONSTITUTION  OF  THE  UNITED  STATES. 

plish  its  objects  in  the  safest  mode  ;  safest  for  the  sta¬ 
bility  of  the  Government  ;  and  safest  for  the  rights  and 
liberties  of  the  people. 

§  419.  The  Constitution  has  adopted  a  middle  course. 
It  has  provided  for  amendments  being  made  ;  the  mode 
is  easy  ;  and  at  the  same  time,  it  secures  due  deliberation, 
and  caution.  Congress  may  propose  amendments,  or  a 
convention  of  the  States.  But,  in  any  amendment  pro¬ 
posed  by  Congress,  two  thirds  of  both  Houses  must  con¬ 
cur  ;  and  no  convention  can  be  called,  except  upon  the 
application  of  two  thirds  of  the  States.  When  amend¬ 
ments  are  proposed  in  either  way,  the  assent  of  three 
fourths  of  all  the  States  is  necessary  to  their  ratification. 
And,  certainly,  it  may  be  said  with  confidence,  that  if 
three  fourths  of  the  States  are  not  satisfied  with  the  ne¬ 
cessity  of  any  particular  amendment,  the  evils,  which  it 
proposes  to  remedy,  cannot  be  of  any  general  or  pressing 
nature.  That  the  power  of  amendment  is  not,  in  its 
present  form,  impracticable,  is  proved  by  the  fact,  that 
twelve  amendments  have  been  already  proposed  and 
ratified. 

§  420.  The  proviso  excludes  the  power  of  amend¬ 
ment,  until  the  year  1808,  of  the  clauses  in  the  Constitu¬ 
tion,  which  respects  the  importation  and  migration  of 
slaves,  and  the  apportionment  of  direct  taxes.  And  as 
the  equality  of  the  Representation  of  the  States  in  the 
Senate  might  be  destroyed  by  an  amendment,  it  is  ex¬ 
pressly  declared,  that  no  amendment  shall  deprive  any 
State,  without  its  consent,  of  its  equal  suffrage  in  that  body. 


CHAPTER  XXXV. 

Public  Debt. — Supremacy  of  the  Constitution ,  and  Laws. 

§  421.  The  first  clause  of  the  sixth  article  is,  “  All 
debts  contracted,  and  engagements  entered  into,  before 
the  adoption  of  this  Constitution,  shall  be  as  valid  against 
the  United  States,  under  this  Constitution,  as  under  the 


SUPREMACY  OF  THE  CONSTITUTION. 


249 


Confederation.”  This  can  scarcely  be  deemed  more 
than  a  solemn  declaration  of  what  the  public  law  of  na¬ 
tions  recognizes  as  a  moral  obligation,  binding  on  all 
nations,  notwithstanding  any  changes  in  their  forms  of 
Government.  It  was  important,  however,  to  clear  away 
all  possible  doubts,  and  to  satisfy  and  quiet  the  public 
creditors,  who  might  fear,  that  their  just  claims  upon  the 
Confederation  might  be  disregarded  or  denied. 

§  422.  The  next  clause  is,  u  This  Constitution,  and 
the  Laws  of  the  United  States,  which  shall  be  made  in 
pursuance  thereof,  and  all  treaties  made,  or  which  shall 
be  made,  under  the  authority  of  the  United  States,  shall 
be  the  supreme  law  of  the  land.  And  the  judges  in  every 
State  shall  be  bound  thereby,  any  thing  in  the  Constitu¬ 
tion,  or  laws  of  any  State,  to  the  contrary  notwithstand¬ 
ing.”  The  propriety  of  this  power  results  from  the  very 
nature  of  the  Constitution.  To  establish  a  National  Gov¬ 
ernment,  and  to  affirm,  that  it  shall  have  certain  powers  ; 
and  yet,  that  in  the  exercise  of  those  powers  it  shall  not 
be  supreme,  but  controllable  by  any  State  in  the  Union, 
wTouid  be  a  solecism,  so  mischievous,  and  so  indefensible, 
that  the  scheme  could  never  be  attributed  to  the  framers 
of  the  Constitution,  without  manifestly  impeaching  their 
wisdom,  as  well  as  their  good  faith.  The  want  of  such 
an  effective  practical  supremacy  was  a  vital  defect  in  the 
Confederation  ;  and  furnished  the  most  solid  reason  for 
abolishing  it.  It  wrould  be  an  idle  mockery,  to  give  pow¬ 
ers  to  Congress,  and  yet  at  the  same  time  to  declare,  that 
those  powers  might  be  suspended  or  annihilated,  at  the 
will  of  a  single  State  ;  that  the  will  of  twenty-five  States 
should  be  surrendered  to  the  will  of  one.  A  govern¬ 
ment  of  such  a  nature  would  be  as  unworthy  of  public 
confidence,  as  it  would  be  incapable  of  affording  public 
protection,  or  private  happiness. 

§  423.  In  regard  to  treaties,  there  is  equal  reason, 
why  they  should  be  held,  when  made,  to  be  the  supreme 
law  of  the  land.  It'  is  to  be  considered,  that  treaties 
constitute  solemn  compacts  of  binding  obligation  among 
nations  ;  and  unless  they  are  scrupulously  obeyed,  and 
enforced,  no  foreign  nation  would  consent  to  negotiate 


250  CONSTITUTION  OF  THE  UNITED  STATES. 

with  us  ;  or  if  it  did,  any  want  of  strict  fidelity,  on  our 
part,  in  the  discharge  of  the  treaty  stipulations,  would  be 
visited  by  reprisals,  or  by  war.  It  is,  therefore,  indispen¬ 
sable,  that  they  should  have  the  obligation  and  force  of  a 
law,  that  they  may  be  executed  by  the  judicial  power, 
and  be  obeyed  like  other  laws.  This  will  not  prevent 
them  from  being  cancelled,  or  abrogated,  by  the  nation, 
upon  grave  and  suitable  occasions  ;  for  it  will  not  be  dis¬ 
puted,  that  they  are  subject  to  the  legislative  power,  and 
may  be  repealed,  like  other  laws,  at  its  pleasure  ;  or  they 
may  be  varied  by  new  treaties.  Still,  while  they  do 
subsist,  they  ought  to  have  a  positive  binding  efficacy,  as 
laws,  upon  all  the  States,  and  all  the  citizens  of  the  States. 
The  peace  of  the  nation,  and  its  good  faith,  and  moral 
dignity,  indispensably  require,  that  all  State  laws  should 
be  subjected  to  their  supremacy.  The  difference  be¬ 
tween  considering  them  as  laws,  and  considering  them  as 
executory,  or  executed  contracts,  is  exceedingly  im¬ 
portant  in  the  actual  administration  of  public  justice.  If 
they  are  supreme  laws,  courts  of  justice  will  enforce 
them  directly  in  all  cases,  to  which  they  can  be  judicially 
applied,  in  opposition  to  all  State  laws,  as  we  all  know 
was  done  in  the  case  of  the  British  debts,  secured  by  the 
treaty  of  1783,  after  the  Constitution  was  adopted.  If 
they  are  deemed  but  solemn  compacts,  promissory  in 
their  nature  and  obligation,  courts  of  justice  may  be 
embarrassed  in  enforcing  them,  and  may  be  compelled  to 
leave  the  redress  to  be  administered  through  other  de¬ 
partments  of  the  Government.  It  is  notorious,  that 
treaty  stipulations  (especially  those  of  the  treaty  of  peace 
of  1783)  were  grossly  disregarded  by  the  States  under  the 
Confederation.  They  were  deemed  by  the  States,  not 
as  laws,  but  like  requisitions,  of  a  mere  moral  obligation, 
and  dependent  upon  the  good  will  of  the  States  for  their 
execution.  Congress,  indeed,  remonstrated  against  this 
construction,  as  unfounded  in  principle  and  justice.  But 
their  voice  was  not  heard.  Power  and  right  were  separ¬ 
ated  ;  the  argument  was  all  on  one  side  ;  but  the  power 
was  on  the  other.  It  was  probably  to  obviate  this  very 
difficulty,  that  this  clause  was  inserted  in  the  Constitution  ; 


OATH  OF  OFFICE. - RELIGIOUS  TEST.  251 


and  it  would  redound  to  the  immortal  honor  of :!«  authors, 
if  it  had  done  no  more,  than  thus  to  bring  treaties  within 
the  sanctuary  of  justice,  as  laws  of  supreme  obligation. 
There  are,  indeed,  still  cases,  in  which  courts  of  justice 
can  administer  no  effectual  redress  ;  for,  when  the  terms 
of  a  stipulation  import  a  contract,  or  when  either  of  the 
parties  engages  to  perform  a  particular  act,  the  treaty  ad¬ 
dresses  itself  to  the  political,  and  not  to  the  judicial, 
department  ;  and  the  legislature  must  execute  the  con¬ 
tract,  before  it  can  become  a  rule  for  the  courts. 

§  424.  From  this  supremacy  of  the  Constitution,  and 
laws,  and  treaties,  of  the  United  States,  within  their  con¬ 
stitutional  scope,  arises  the  duty  of  courts  of  justice  to 
declare  any  unconstitutional  law  passed  by  Congress,  or 
by  a  State  legislature,  void.  So,  in  like  manner,  the 
same  duty  arises,  whenever  any  other  department  of  the 
National  or  State  governments  exceeds  its  constitutional 
functions.  But  the  Judiciary  of  the  United  States  has 
no  general  jurisdiction  to  declare  acts  of  the  several  States 
void,  unless  they  are  repugnant  to  the  Constitution  of  the 
United  States,  notwithstanding  they  are  repugnant  to  the 
State  Constitution.  Such  a  power  belongs  to  it  only, 
when  it  sits  to  administer  the  local  law  of  a  State,  and 
acts  exactly,  as  a  State  tribunal  is  bound  to  act.  But 
upon  this  subject  it  seems  unnecessary  to  dwell,  since 
the  right  of  ail  courts,  State  as  well  as  National,  to  de¬ 
clare  unconstitutional  laws  void,  seems  settled  beyond 
the  reach  of  judicial  controversy. 


C  Ft  AFTER  XXXVI. 

Oath  of  Office. — Religions  Test . — Ratification  of  the 

Constitution. 

§  425.  The  next  clause  is,  u  The  Senators  and  Rep¬ 
resentatives  before  mentioned,  (that  is,  in  Congress,)  and 
the  members  of  the  several  State  Legislatures,  and  all  ex¬ 
ecutive  and  judicial  officers,  both  of  the  United  States 


252  CONSTITUTION  OF  THE  UNITED  STATES. 

and  of  the  several  States,  shall  be  bound  by  oath  or  affir¬ 
mation  to  support  this  Constitution.  But  no  religious  test 
shall  ever  be  required,  as  a  qualification  to  any  office  or 
public  trust  under  the  United  States.” 

§  426.  That  all  those,  who  are  intrusted  with  the  exe¬ 
cution  of  the  powers  of  the  National  Government,  should 
he  bound,  by  some  solemn  obligation,  to  the  due  execu¬ 
tion  of  the  trusts  reposed  in  them,  and  to  support  the 
Constitution,  would  seem  to  be  a  proposition  too  clear,  to 
render  any  reasoning  necessary  in  support  of  it.  It  results 
from  the  plain  right  of  society,  to  require  some  guarantee 
from  every  officer,  that  he  will  be  conscientious  in  the  dis¬ 
charge  of  his  duty.  Oaths  have  a  solemn  obligation  upon 
the  minds  of  all  reflecting  men,  and  especially  upon  those, 
who  feel  a  deep  sense  of  accountability  to  a  Supreme 
being.  If,  in  the  ordinary  administration  of  justice,  in 
cases  of  private  rights,  or  personal  claims,  oaths  are  re¬ 
quired  of  those,  who  try  the  cause,  as  well  as  of  those, 
who  give  testimony,  to  guard  against  malice,  falsehood, 
and  evasion,  surely  like  guards  ought  to  be  interposed  in 
the  administration  of  high  public  trusts,  and  especially  in 
such,  as  may  concern  the  welfare  and  safety  of  the  whole 
community.  But  there  are  known  denominations  of  men, 
who  are  conscientiously  scrupulous  of  taking  oaths,  (among 
which  is  that  pure  and  distinguished  sect  of  Christians, 
commonly  called  Friends,  or  Quakers,)  and,  therefore, 
to  prevent  any  unjustifiable  exclusion  from  office,  the 
Constitution  has  permitted  a  solemn  affirmation  to  be 
made,  instead  of  an  oath,  and  as  its  equivalent. 

§  427.  But  it  may  not  appear  to  all  persons  quite  so 
clear,  why  the  officers  of  the  State  governments  should 
be  equally  bound  to  take  a  like  oath  or  affirmation  ;  and 
it  has  been  even  suggested,  that  there  is  no  more  reason 
to  require  that,  than  to  require,  that  all  of  the  United 
States  officers  should  take  an  oath  or  affirmation  to  sup¬ 
port  the  State  Constitutions.  -A  moment’s  reflection  will 
show  sufficient  reasons  for  the  requisition  of  it  in  the  one 
case,  and  the  omission  of  it  in  the  other.  The  members 
and  officers  of  the  National  Government  have  no  agen¬ 
cy  in  carrying  into  effect  the  State  Constitutions.  The 


RATIFICATION  OF  THE  CONSTITUTION.  253 


members  and  officers  of  the  State  governments  have  an 
essential  agency  in  giving  effect  to  the  National  Constitu¬ 
tion.  The  election  of  the  President  and  the  Senate  will 
depend,  in  all  cases,  upon  the  Legislatures  of  the  several 
States  ;  and,  in  many  cases,  the  election  of  the  House  of 
Representatives  may  be  affected  by  their  agency.  The 
judges  of  the  State  courts  will  frequently  be  called  upon  to 
decide  upon  the  Constitution,  and  laws,  and  treaties,  of  the 
United  States  ;  and  upon  rights  and  claims  growing  out  of 
them.  Decisions  ought  to  be,  as  far  as  possible,  uniform  ; 
and  uniformity  of  obligation  will  greatly  tend  to  such  a  re¬ 
sult.  The  executive  authority  of  the  several  States  may  be 
often  called  upon  to  exert  powers,  or  to  allow  rights,  given 
by  the  Constitution,  as  in  filling  vacancies  in  the  Senate, 
during  the  recess  of  the  Legislature  ;  in  issuing  wrrits  of 
election,  to  fill  vacancies  in  the  House  of  Representa¬ 
tives  ;  in  officering  the  militia,  and  giving  effect  to  laws 
for  calling  them  out ;  and  in  the  surrender  of  fugitives  from 
justice.  These,  and  many  other  functions,  devolving  on 
the  State  authorities,  render  it  highly  important,  that 
they  should  be  under  a  solemn  obligation  to  obey  the 
Constitution.  In  common  sense,  there  can  be  no  well- 
founded  objection  to  it.  There  may  be  serious  evils 
growing  out  of  an  opposite  course. 

§  428.  The  remaining  part  of  the  clause  declares,  that 
44  no  religious  test  shall  ever  be  required,  as  a  qualification 
to  any  office  or  public  trust  under  the  United  States.” 
This  clause  is  recommended  by  its  tendency  to  satisfy  the 
minds  of  many  delicate  and  scrupulous  persons,  who  enter¬ 
tain  great  repugnance  to  religious  tests,  as  a  qualification 
for  civil  power  or  honor.  But  it  has  a  higher  aim  in  the 
Constitution.  It  is  designed  to  cut  off  every  pretence 
of  an  alliance  between  the  Church  and  the  State,  in  the  ad¬ 
ministration  of  the  National  Government.  The  American 
people  were  too  well  read  in  the  history  of  other  coun¬ 
tries,  and  had  suffered  too  much  in  their  colonial  state, 
not  to  dread  the  abuses  of  authority  resulting  from  reli¬ 
gious  bigotry,  intolerance,  and  persecution.  They  knew 
but  too  well,  that  no  sect  could  be  safely  trusted  with 
power  on  such  a  subject  ;  for  all  had  in  turns  wielded  it 

22  xm. 


254  CONSTITUTION  OF  THE  UNITED  STATES. 

to  the  injury,  and  sometimes  to  the  destruction,  of  their 
inoffensive,  but,  in  their  judgement,  erring  neighbors. 
And  we  shall  presently  see,  that,  by  an  amendment  to 
the  Constitution,  evils  of  this  sort  in  the  National  Gov¬ 
ernment  are  still  more  effectually  guarded  against. 

§  429.  The  seventh  and  last  article  of  the  Constitu¬ 
tion  is,  “  The  ratification  of  the  Conventions  of  nine 
States,  shall  be  sufficient  for  the  establishment  of  this 
Constitution  between  the  States  so  ratifying  the  same.” 
It  is  unnecessary  now  to  comment  upon  this  article,  as 
all  the  States  have  ratified  the  Constitution.  But  we 
know,  that  if  an  unanimous  ratification  of  it,  by  all  the 
States,  had  been  required,  it  would  have  been  rejected  ; 
for  North  Carolina,  and  Rhode  Island,  did  not,  at  first, 
accede  to  it. 

§  430.  And  here  closes  our  review  of  the  Constitu¬ 
tion  in  the  original  form,  in  which  it  was  adopted  by  the 
people  of  the  United  States.  The  concluding  passage 
of  it  is  valuable,  as  an  historical  reminiscence.  “Done 
in  Convention,  by  the  unanimous  consent  of  the  States 
present,  the  seventeenth  day  of  September,  in  the  year  of 
our  Lord  one  thousand  seven  hundred  and  eighty-seven, 
and  of  the  Independence  of  the  United  States  the  twelfth. 
In  witness  whereof,  we  have  hereunto  subscribed  our 
names.”  At  the  head  of  the  illustrious  men,  who  framed 
and  signed  it,  stands  the  name  of  “  George  Washington, 
President,  and  Deputy  from  Virginia  ;”  a  name,  at  the 
utterance  of  which  it  is  impossible  not  to  feel  the  liveliest 
sense  of  gratitude  to  a  gracious  Providence,  for  a  life  of 
so  much  glory,  such  spotless  integrity,  and  such  exalted 
patriotism. 


CHAPTER  XXXVII. 

Amendments  to  the  Constitution. 

§  431.  When  the  Constitution  was  before  the  people 
for  adoption,  several  of  the  State  conventions  suggested 


AM  END  31  ENTS. - BILL  OF  RIGHTS. 


255 


certain  amendments  for  the  consideration  of  Congress, 
some  of  the  most  important  of  which  were  afterwards 
proposed  to  the  people  for  adoption,  by  that  body,  at  its 
first  organization;  and,  having  been  since  ratified,  they  are 
now  incorporated  into  the  Constitution.  They  are  mainly 
clauses,  in  the  nature  of  a  Bill  of  Rights,  which  more  ef¬ 
fectually  guard  certain  rights,  already  provided  for  in  the 
Constitution,  or  prohibit  certain  exercises  of  authority, 
supposed  to  be  dangerous  to  the  public  interests.  We 
have  already  had  occasion  to  consider  several  of  them  in 
the  preceding  pages  ;  and  the  remainder  will  now  be  pre¬ 
sented. 

§  432.  Before,  however,  proceeding  to  the  considera¬ 
tion  of  them,  it  may  be  proper  to  say  a  few  words,  as  to 
the  origin  and  objects  of  the  first  ten  amendments,  which 
may  be  considered  as  a  Bill  of  Rights,  and  wTere  proposed 
by  the  first  Congress,  and  were  immediately  adopted  by 
the  people  of  the  United  States.  The  first  amendment 
is,  “  Congress  shall  make  no  law  respecting  an  establish¬ 
ment  of  religion,  or  prohibiting  the  free  exercise  thereof ; 
or  abridging  the  freedom  of  speech,  or  of  the  press  ;  or 
the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  government  for  a  redress  of  grievances.” 

§  433.  It  has  been  already  stated,  that  many  objec¬ 
tions  were  taken  to  the  Constitution,  not  only  on  account 
of  its  actual  provisions,  but  also  on  account  of  its  defi¬ 
ciencies  and  omissions.  Among  the  latter,  none  were 
proclaimed  with  more  zeal,  and  pressed  with  more  effect, 
than  the  want  of  a  Bill  of  Rights.  This,  it  was  said,  was 
a  fatal  defect  ;  and  sufficient  of  itself  to  bring  on  the  ruin 
of  the  republic.  To  this  objection,  several  answers  were 
given  ;  first,  that  the  Constitution  did,  in  fact,  contain  many 
provisions  in  the  nature  of  a  Bill  of  Rights,  if  the  whole 
Constitution  was  not,  in  fact,  a  Bill  of  Rights  ;  secondly, 
that  a  Bill  of  Rights  was  in  its  nature  more  adapted  to  a 
monarchy,  than  to  a  government,  professedly  founded 
upon  the  will  of  the  people,  and  executed  by  their  imme¬ 
diate  representatives  and  agents  ;  and,  thirdly,  that  a  for¬ 
mal  Bill  of  Rights,  beyond  what  was  contained  in  it,  was 
wholly  unnecessary,  and  might  even  be  dangerous. 


256  CONSTITUTION  OF  THE  UNITED  STATES. 

§  434.  It  was  further  added,  that,  in  truth,  the  Consti¬ 
tution  itself,  was,  in  every  rational  sense,  and  to  every 
useful  purpose,  a  Bill  of  Rights  for  the  Union.  It  speci¬ 
fies,  and  declares  the  political  privileges  of  the  citizens  in 
the  structure  and  administration  of  the  Government.  It 
defines  certain  immunities  and  modes  of  proceeding,  which 
relate  to  their  personal,  private,  and  public  rights  and 
concerns.  It  confers  on  them  the  unalienable  right  of 
electing  their  rulers  ;  and  prohibits  any  tyrannical  meas¬ 
ures,  and  vindictive  prosecutions.  So  that,  at  best,  much 
of  the  force  of  the  objection  rests  on  mere  nominal  dis¬ 
tinctions,  or  upon  a  desire  to  make  a  frame  of  government 
a  code  to  regulate  rights  and  remedies. 

§  435.  Although  it  must  be  conceded,  that  there  is 
much  intrinsic  force  in  this  reasoning,  it  cannot  in  candor 
be  admitted  to  be  wholly  satisfactory,  or  conclusive  on 
the  subject.  It  is  rather  the  argument  of  an  able  advo¬ 
cate,  than  the  reasoning  of  a  constitutional  statesman.  In 
the  first  place,  a  Bill  of  Rights  (in  the  very  sense  of  this 
reasoning)  is  admitted  in  some  cases  to  be  important  ; 
and  the  Constitution  itself  adopts,  and  establishes  its  pro¬ 
priety  to  the  extent  of  its  actual  provisions.  Every  rea¬ 
son,  which  establishes  the  propriety  of  any  provision  of 
this  sort  in  the  Constitution,  such  as  a  right  of  trial  by 
jury  in  criminal  cases,  is,  to  that  extent,  proof,  that  it  is 
neither  unnecessary  nor  dangerous.  It  reduces  the  ques¬ 
tion  to  the  consideration,  not  whether  any  Bill  of  Rights  is 
necessary,  but  what  such  a  Bill  of  Rights  should  properly 
contain.  This  is  a  point  for  argument,  upon  which  dif¬ 
ferent  minds  may  arrive  at  different  conclusions.  That  a 
Bill  of  Rights  may  contain  too  many  enumerations,  and 
especially  such,  as  more  correctly  belong  to  the  ordinary 
legislation  of  a  government,  cannot  be  doubted.  Some 
of  our  State  Bills  of  Rights  contain  clauses  of  this  descrip¬ 
tion,  being  either  in  their  character  and  phraseology  quite 
too  loose,  and  general,  and  ambiguous  ;  or  covering  doc¬ 
trines  quite  debatable,  both  in  theory  and  practice  ;  or 
even  leading  to  mischievous  consequences,  by  restricting 
the  Legislative  power  under  circumstances,  which  were 
not  foreseen,  and  if  foreseen,  the  restraint  would  have 


AMENDMENTS. - BILL  OF  RIGHTS. 


257 


been  pronounced  by  all  persons  inexpedient,  and  perhaps 
unjust.  Indeed,  the  rage  of  theorists  to  make  constitu¬ 
tions  a  vehicle  for  the  conveyance  of  their  own  crude  and 
visionary  aphorisms  of  government,  requires  to  be  guarded 
against  with  the  most  unceasing  vigilance. 

§  436.  In  the  next  place,  a  Bill  of  Rights  is  important, 
and  may  often  be  indispensable,  whenever  it  operates  as 
a  qualification  upon  powers,  actually  granted  by  the  peo¬ 
ple  to  the  government.  This  is  the  real  ground  of  all  the 
Bills  of  Rights  in  the  parent  country,  in  the  Colonial  con¬ 
stitutions  and  laws,  and  in  the  State  constitutions.  In 
England,  the  Bills  of  Rights  were  not  demanded  merely  of 
the  Crown,  as  withdrawing  a  power  from  the  Royal  pre¬ 
rogative  ;  they  were  equally  important,  as  withdrawing 
power  from  Parliament.  A  large  proportion  of  the  most 
valuable  of  the  provisions  in  Magna  Charta,  and  the  Bill 
of  Rights  in  1683,  consists  of  a  solemn  recognition  of  the 
limitations  upon  the  powers  of  Parliament ;  that  is,  a  dec¬ 
laration,  that  Parliament  ought  not  to  abolish,  or  restrict 
those  rights.  Such  are  the  right  of  trial  by  jury ;  the 
right  to  personal  liberty  and  private  property,  according 
to  the  law  of  the  land  ;  that  the  subjects  ought  to  have  a 
right  to  bear  arms  ;  that  elections  of  members  of  Parlia¬ 
ment  ought  to  be  free  ;  that  freedom  of  speech  and  debate 
in  Parliament  ought  not  to  be  impeached,  or  questioned 
elsewhere  ;  and  that  excessive  bail  ought  not  to  be  re¬ 
quired,  nor  excessive  fines  imposed,  nor  cruel  or  unusual 
punishments  inflicted.  Whenever,  then,  a  general  power 
exists,  or  is  granted  to  a  government,  which  may,  in  its 
actual  exercise  or  abuse,  be  dangerous  to  the  people,  there 
seems  a  peculiar  propriety  in  restricting  its  operations, 
and  in  excepting  from  it  some  at  least  of  the  most  mis¬ 
chievous  forms,  in  which  it  may  be  likely  to  be  abused. 
And  the  very  exception  in  such  cases,  will  operate  with  a 
silent,  but  irresistible  influence,  to  control  the  actual  abuse 
of  it  in  other  analogous  cases. 

§  437.  In  the  next  place,  a  Bill  of  Rights  may  be  im¬ 
portant,  even  when  it  goes  beyond  the  powers  supposed  to 
be  granted.  It  is  not  always  possible  to  foresee  the  ex¬ 
tent  of  the  actual  reach  of  certain  powers,  which  are 

22* 


258  CONSTITUTION  OF  THE  UNITED  STATES. 

given  in  general  terms.  They  may  be  construed  to  ex¬ 
tend  (and  perhaps  fairly)  to  certain  classes  of  cases,  which 
did  not  at  first  appear  to  be  within  them.  A  Bill  of  Rights, 
then,  operates,  as  a  guard  upon  any  extravagant  or  undue 
extension  of  such  powers.  Besides  ;  (as  has  been  justly 
remarked,)  a  Bill  of  Rights  is  of  real  efficiency  in  control¬ 
ling  the  excesses  of  party  spirit.  It  serves  to  guide  and 
enlighten  public  opinion,  and  to  render  it  more  quick  to 
detect,  and  more  resolute  to  resist,  attempts  to  disturb 
private  rights.  It  requires  more  than  ordinary  hardihood 
and  audacity  of  character,  to  trample  down  principles, 
which  our  ancestors  have  consecrated  with  reverence  ; 
which  we  imbibed  in  our  early  education  ;  which  recom¬ 
mend  themselves  to  the  judgement  of  the  world  by  their 
truth  and  simplicity  ;  and  which  are  constantly  placed 
before  the  eyes  of  the  people,  accompanied  with  the  im¬ 
posing  force  and  solemnity  of  a  constitutional  sanction. 
Bills  of  Rights  are  a  part  of  the  muniments  of  freemen, 
showing  their  title  to  protection  ;  and  they  become  of 
increased  value,  when  placed  under  the  protection  of  an 
independent  judiciary,  instituted  as  the  appropriate  guar¬ 
dian  of  the  public  and  private  rights  of  the  citizens. 

§  438.  In  the  next  place,  a  Bill  of  Rights  is  an  impor¬ 
tant  protection  against  unjust  and  oppressive  conduct  on 
the  part  of  the  people  themselves.  In  a  government 
modified  like  that  of  the  United  States,  (it  has  been  said 
by  a  great  statesman,)  the  great  danger  lies  rather  in  the 
abuse  of  the  community,  than  of  the  legislative  body. 
The  prescriptions  in  favor  of  liberty  ought  to  be  levelled 
against  that  quarter,  where  the  greatest  danger  lies,  name¬ 
ly,  that  which  possesses  the  highest  prerogative  of  power. 
But  this  is  not  found  in  the  executive  or  legislative  de¬ 
partments  of  government  ;  but  in  the  body  of  the  people, 
operating  by  the  majority  against  the  minority.  It  may 
be  thought,  that  all  paper  barriers  against  the  power  of 
the  community  are  too  weak  to  be  worthy  of  attention. 
They  are  not  so  strong,  as  to  satisfy  all,  who  have  seen 
and  examined  thoroughly  the  texture  of  such  a  defence. 
Yet,  as  they  have  a  tendency  to  impress  some  degree  of 
respect  for  them,  to  establish  the  public  opinion  in  their 


AMENDMENTS. - FREEDOM  OF  RELIGION.  259 


favor,  and  to  rouse  the  attention  of  the  whole  community, 
it  may  be  one  means  to  control  the  majority  from  those 
acts,  to  which  they  might  be  otherwise  inclined. 

§  439.  The  want  of  a  Bill  of  Rights,  then,  is  not  either 
an  unfounded  or  illusory  objection.  The  real  question 
is  not,  whether  every  sort  of  right  or  privilege  or  claim 
ought  to  be  affirmed  in  a  constitution  ;  but  whether  such, 
as  in  their  own  nature  are  of  vital  importance,  and  pecu¬ 
liarly  susceptible  of  abuse,  ought  not  to  receive  this  sol¬ 
emn  sanction.  Doubtless,  the  want  of  a  formal  Bill  of 
Rights  in  the  Constitution  was  a  matter  of  very  exaggerat¬ 
ed  declamation  and  party  zeal,  for  the  mere  purpose  of 
defeating  the  Constitution.  But,  so  far  as  the  objection 
was  well  founded  in  fact,  it  was  right  to  remove  it  by 
subsequent  amendments  ;  and  Congress  have  (as  we  shall 
see)  accordingly  performed  the  duty  with  most  prompt 
and  laudable  diligence. 

§440.  The  first  amendment  is,  u  Congress  shall 
make  no  law  respecting  an  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof ;  or  abridging  the 
freedom  of  speech,  or  of  the  press  ;  or  the  right  of  the 
people  peaceably  to  assemble,  and  to  petition  the  gov¬ 
ernment  for  a  redress  of  grievances.” 

§441.  The  same  policy,  which  introduced  into  the 
Constitution  the  prohibition  of  any  religious  test,  led  to 
this  more  extended  prohibition  of  the  interference  of  Con¬ 
gress  in  religious  concerns.  We  are  not  to  attribute  this 
prohibition  of  a  national  religious  establishment  to  an  in¬ 
difference  to  religion  in  general,  and  especially  to  Chris¬ 
tianity,  (which  none  could  hold  in  more  reverence,  than 
the  framers  of  the  Constitution,)  but  to  a  dread  by  the 
people  of  the  influence  of  ecclesiastical  power  in  matters 
of  government  ;  a  dread,  which  their  ancestors  brought 
with  them  from  the  parent  country,  and  which,  unhappily 
for  human  infirmity,  their  own  conduct,  after  their  emigra¬ 
tion,  had  not,  in  any  just  degree,  tended  to  diminish.  It 
was  also  obvious,  from  the  numerous  and  powerful  sects 
existing  in  the  United  States,  that  there  would  be  perpet¬ 
ual  temptations  to  struggles  for  ascendency  in  the  National 
councils,  if  any  one  might  thereby  hope  to  found  a  perma- 


260  CONSTITUTION  OF  THE  UNITED  STATES. 

nent  and  exclusive  national  establishment  of  its  own  ;  and 
religious  persecutions  might  thus  be  introduced,  to  an  ex¬ 
tent  utterly  subversive  of  the  true  interests  and  good  or¬ 
der  of  the  Republic.  The  most  effectual  mode  of  sup¬ 
pressing  the  evil,  in  the  view  of  the  people,  was,  to  strike 
down  the  temptations  to  its  introduction. 

§  442.  How  far  any  government  has  a  right  to  interfere 
in  matters  touching  religion,  has  been  a  subject  much  dis¬ 
cussed  by  writers  upon  public  and  political  law.  The  right 
and  the  duty  of  the  interference  of  government  in  mat¬ 
ters  of  religion  have  been  maintained  by  many  distinguish¬ 
ed  authors,  as  well  by  those,  who  were  the  warmest  advo¬ 
cates  of  free  governments,  as  by  those,  who  were  attached 
to  governments  of  a  more  arbitrary  character.  Indeed, 
the  right  of  a  society  or  government  to  interfere  in  matters 
of  religion,  will  hardly  be  contested  by  any  persons,  who 
believe  that  piety,  religion,  and  morality  are  intimately 
connected  with  the  well  being  of  the  state,  and  indispen¬ 
sable  to  the  administration  of  civil  justice.  The  promul¬ 
gation  of  the  great  doctrines  of  religion,  the  being,  and 
attributes,  and  providence  of  one  Almighty  God  ;  the 
responsibility  to  Him  for  all  our  actions,  founded  upon 
moral  accountability  ;  a  future  state  of  rewards  and  pun¬ 
ishments  ;  the  cultivation  of  all  the  personal,  social,  and 
benevolent  virtues  ; — these  never  can  be  a  matter  of  in¬ 
difference  in  any  well-ordered  community.  It  is,  indeed, 
difficult  to  conceive,  how  any  civilized  society  can  well 
exist  without  them.  And,  at  all  events,  it  is  impossible 
for  those,  who  believe  in  the  truth  of  Christianity,  as  a 
Divine  revelation,  to  doubt,  that  it  is  the  especial  duty  of 
government  to  foster,  and  encourage  it  among  all  the  cit¬ 
izens  and  subjects.  This  is  a  point  wholly  distinct  from 
that  of  the  right  of  private  judgement  in  matters  of  relig¬ 
ion,  and  of  the  freedom  of  public  worship,  according  to 
the  dictates  of  one’s  conscience. 

§  443.  The  real  difficulty  lies  in  ascertaining  the  limits, 
to  which  government  may  rightfully  go,  in  fostering  and 
encouraging  religion.  Three  cases  may  easily  be  sup¬ 
posed.  One,  where  a  government  affords  aid  to  a  par¬ 
ticular  religion,  leaving  all  persons  free  to  adopt  any 


AMENDMENTS - LIBERTY  OF  THE  PRESS.  261 


other  ;  another,  where  it  creates  an  ecclesiastical  estab¬ 
lishment  for  the  propagation  of  the  doctrines  of  a  particular 
sect  of  that  religion,  leaving  a  like  freedom  to  all  others  ; 
and  a  third,  where  it  creates  such  an  establishment,  and 
excludes  all  persons,  not  belonging  to  it,  either  wholly,  or 
in  part,  from  any  participation  in  the  public  honors,  trusts, 
emoluments,  privileges,  and  immunities  of  the  state.  For 
instance,  a  government  may  simply  declare,  that  the  Chris¬ 
tian  religion  shall  be  the  religion  of  the  state,  and  shall  be 
aided,  and  encouraged  in  all  the  varieties  of  sects  belong¬ 
ing  to  it  ;  or  it  may  declare,  that  the  Roman  Catholic  or 
Protestant  religion  shall  be  the  religion  of  the  state,  leav¬ 
ing  every  man  to  the  free  enjoyment  of  his  own  religious 
opinions  ;  or  it  may  establish  the  doctrines  of  a  particular 
sect,  as  of  Episcopalians,  as  the  religion  of  the  state,  with 
a  like  freedom ;  or  it  may  establish  the  doctrines  of  a 
particular  sect,  as  exclusively  the  religion  of  the  state, 
tolerating  others  to  a  limited  extent,  or  excluding  all,  not 
belonging  to  it,  from  all  public  honors,  trusts,  emolu¬ 
ments,  privileges,  and  immunities. 

§  444.  Probably,  at  the  time  of  the  adoption  of  the 
Constitution,  and  of  the  amendment  to  it,  now  under  con¬ 
sideration,  the  general,  if  not  the  universal,  sentiment  in 
America  was,  that  Christianity  ought  to  receive  encour¬ 
agement  from  the  State,  so  far  as  such  encouragement  was 
not  incompatible  with  the  private  rights  of  conscience, 
and  the  freedom  of  religious  worship.  An  attempt  to 
level  all  religions,  and  to  make  it  a  matter  of  state  policy 
to  hold  all  in  utter  indifference,  would  have  created  uni¬ 
versal  disapprobation,  if  not  universal  indignation. 

§  445.  The  next  clause  respects  the  liberty  of  speech, 
and  of  the  press.  That  this  amendment  was  intended  to 
secure  to  every  citizen  an  absolute  right  to  speak,  or  write, 
or  print,  whatever  he  might  please,  without  any  responsi¬ 
bility,  public  or  private,  therefor,  is  a  supposition  too  wild 
to  be  indulged  by  any  reasonable  man.  That  would  be, 
to  allow  every  citizen  a  right  to  destroy,  at  his  pleasure, 
the  reputation,  the  peace,  the  property,  and  even  the  per¬ 
sonal  safety  of  every  other  citizen.  A  man  might  then, 
out  of  mere  malice  or  revenge,  accuse  another  of  infamous 


262  CONSTITUTION  OF  THE  UNITED  STATES. 

crimes  ;  might  excite  against  him  the  indignation  of  all 
his  fellow  citizens  by  the  most  atrocious  calumnies  ;  might 
disturb,  nay,  overturn  his  domestic  peace,  and  embitter 
his  domestic  affections  ;  might  inflict  the  most  distressing 
punishments  upon  the  weak,  the  timid,  and  the  innocent  ; 
might  prejudice  all  the  civil,  political,  and  private  rights 
of  another  ;  and  might  stir  up  sedition,  rebellion,  and  even 
treason,  against  the  government  itself,  in  the  wantonness 
of  his  passions,  or  the  corruptions  of  his  heart.  Civil 
society  could  not  go  on  under  such  circumstances.  Men 
would  be  obliged  to  resort  to  private  vengeance  to  make 
up  for  the  deficiencies  of  the  law.  It  is  plain,  then,  that 
this  amendment  imports  no  more,  than  that  every  man 
shall  have  a  right  to  speak,  write,  and  print  his  opinions 
upon  any  subject  whatsoever,  without  any  prior  restraint, 
so  always  that  he  does  not  injure  any  other  person  in  his 
rights,  property,  or  personal  reputation  ;  and  so  always 
that  he  does  not  thereby  disturb  the  public  peace,  or  at¬ 
tempt  to  subvert  the  government.  It  is  in  fact  designed 
to  guard  against  those  abuses  of  power,  by  which,  in  some 
foreign  governments,  men  are  not  permitted  to  speak  upon 
political  subjects,  or  to  write  or  publish  any  thing  without 
the  express  license  of  the  government  for  that  purpose. 

§  446.  A  little  attention  to  the  history  of  other  coun¬ 
tries,  in  other  ages,  will  teach  us  the  vast  importance  of 
this  right.  It  is  notorious,  that,  even  to  this  day,  in  some 
foreign  countries,  it  is  a  crime  to  speak  on  any  subject, 
religious,  philosophical,  or  political,  what  is  contrary  to 
the  received  opinions  of  the  government,  or  the  institutions 
of  the  country,  however  laudable  may  be  the  design,  and 
however  virtuous  may  be  the  motive.  Even  to  animad¬ 
vert  upon  the  conduct  of  public  men,  of  rulers,  or  of  repre¬ 
sentatives,  in  terms  of  the  strictest  truth  and  courtesy,  has 
been,  and  is,  deemed  a  scandal  upon  the  supposed  sanc¬ 
tity  of  their  stations  and  characters,  subjecting  the  party 
to  grievous  punishment.  In  some  countries,  no  works  can 
be  printed  at  all,  whether  of  science,  or  literature,  or  phi¬ 
losophy,  without  the  previous  approbation  of  the  govern¬ 
ment  ;  and  the  press  has  been  shackled,  and  compelled 
to  speak  only  in  the  timid  language,  which  the  cringing 


AMENDMENTS. - LIBERTY  OF  SPEECH.  263 


courtier,  or  the  capricious  inquisitor,  has  been  willing  to 
license  for  publication.  The  Bible  itself,  the  common 
inheritance,  not  merely  of  Christendom,  but  of  the  world, 
has  been  put  exclusively  under  the  control  of  government ; 
and  has  not  been  allowed  to  be  seen,  or  heard,  or  read, 
except  in  a  language  unknown  to  the  common  inhabitants 
of  the  country.  To  publish  a  translation  in  the  vernacu¬ 
lar  tongue,  has  been  in  former  times  a  flagrant  offence. 

§  447.  There  is  a  good  deal  of  loose  reasoning  on  the 
subject  of  the  liberty  of  the  press,  as  if  its  inviolability 
were  constitutionally  such,  that,  like  the  King  of  England, 
it  could  do  no  wrong,  and  was  free  from  every  inquiry, 
and  afforded  a  perfect  sanctuary  for  every  abuse  ;  that, 
in  short,  it  implied  a  despotic  sovereignty  to  do  every 
sort  of  wrong,  without  the  slightest  accountability  to  pri¬ 
vate  or  public  justice.  Such  a  notion  is  too  extravagant 
to  be  held  by  any  sound  constitutional  lawyer,  with  regard 
to  the  rights  and  duties  belonging  to  governments  gener¬ 
ally,  or  to  the  state  governments  in  particular.  If  it 
were  admitted  to  be  correct,  it  might  be  justly  affirmed, 
that  the  liberty  of  the  press  was  incompatible  with  the 
permanent  existence  of  any  free  government.  Mr.  Jus¬ 
tice  Blackstone  has  remarked,  that  the  liberty  of  the  press, 
properly  understood,  is  essential  to  the  nature  of  a  free 
state  ;  but  that  this  consists  in  laying  no  previous  re¬ 
straints  upon  publications,  and  not  in  freedom  from  cen¬ 
sure  for  criminal  matter,  when  published.  Every  freeman 
has  an  undoubted  right  to  lay  what  sentiments  he  pleases 
before  the  public.  To  forbid  this  is  to  destroy  the  free¬ 
dom  of  the  press.  But,  if  he  publishes  what  is  improper, 
mischievous,  or  illegal,  he  must  take  the  consequences  of 
his  own  temerity.  To  subject  the  press  to  the  restrictive 
power  of  a  licenser,  as  was  formerly  done  before,  and 
since  the  Revolution,  (of  1688,)  is  to  subject  all  freedom 
of  sentiment  to  the  prejudices  of  one  man,  and  make  him 
the  arbitrary  and  infallible  judge  of  all  controverted  points 
in  learning,  religion,  and  government.  But  to  punish  any 
dangerous  or  offensive  writings,  which,  when  published, 
shall,  on  a  fair  and  impartial  trial,  be  adjudged  of  a  per¬ 
nicious  tendency,  is  necessary  for  the  preservation  of 


264  CONSTITUTION  OF  THE  UNITED  STATES. 

peace  and  good  order,  of  government  and  religion,  the 
only  solid  foundations  of  civil  liberty.  Thus,  the  will  of 
individuals  is  still  left  free  ;  the  abuse  only  of  that  free 
will  is  the  object  of  legal  punishment.  Neither  is  any 
restraint  hereby  laid  upon  freedom  of  thought  or  inquiry  ; 
liberty  of  private  sentiment  is  still  left ;  the  disseminating, 
or  making  public  of  bad  sentiments,  destructive  of  the 
ends  of  society,  is  the  crime,  which  society  corrects. 
A  man  may  be  allowed  to  keep  poisons  in  his  closet ; 
but  not  publicly  to  vend  them  as  cordials.  And,  after 
some  additional  reflections,  he  concludes  with  this  mem¬ 
orable  sentence  :  cc  So  true  will  it  be  found,  that  to  cen¬ 
sure  the  licentiousness,  is  to  maintain  the  liberty  of  the 
press.” 

§  448.  The  remaining  clause,  secures  u  The  right  of 
the  people  peaceably  to  assemble  and  to  petition  for  a  re¬ 
dress  of  grievances,”  a  right  inestimable  in  itself,  but 
often  prohibited  in  foreign  governments,  under  the  pre¬ 
tence  of  preventing  insurrections,  and  dangerous  conspir¬ 
acies  against  the  government. 

§  449.  This  would  seem  unnecessary  to  be  expressly 
provided  for  in  a  republican  government,  since  it  results 
from  the  very  nature  of  its  structure  and  institutions.  It 
is  impossible,  that  it  could  be  practically  denied,  until 
the  spirit  of  liberty  had  wholly  disappeared,  and  the  peo¬ 
ple  had  become  so  servile  and  debased,  as  to  be  unfit  to 
exercise  any  of  the  privileges  of  freemen. 

§  450.  The  next  amendment  is,  u  A  well-regulated 
militia  being  necessary  to  the  security  of  a  free  state,  the 
right  of  the  people  to  keep  and  bear  arms  shall  not  be  in¬ 
fringed.”  One  of  the  ordinary  modes,  by  which  tyrants 
accomplish  their  purposes  without  resistance,  is,  by  dis¬ 
arming  the  people,  and  making  it  an  offence  to  keep  arms, 
and  by  substituting  a  regular  army  in  the  stead  of  a  resort 
to  the  militia.  The  friends  of  a  free  government  can¬ 
not  be  too  watchful,  to  overcome  the  dangerous  tendency 
of  the  public  mind  to  sacrifice,  for  the  sake  of  mere  pri¬ 
vate  convenience,  this  powerful  check  upon  the  designs 
of  ambitious  men. 

§  451 .  The  importance  of  this  article  will  scarcely  be 


AMENDMENTS. - RIGHTS  OF  THE  PEOPLE.  265 


doubted  by  any  persons,  who  have  duly  reflected  upon 
the  subject.  The  militia  is  the  natural  defence  of  a  free 
country  against  sudden  foreign  invasions,  domestic  insur¬ 
rections,  and  domestic  usurpations  of  power  by  rulers. 
It  is  against  sound  policy  for  a  free  people  to  keep  up 
large  military  establishments  and  standing  armies  in  time 
of  peace,  both  from  the  enormous  expenses,  with  which 
they  are  attended,  and  the  facile  means,  which  they  af¬ 
ford  to  ambitious  and  unprincipled  rulers,  to  subvert  the 
government,  or  trample  upon  the  rights  of  the  people. 
The  right  of  the  citizens  to  keep  and  bear  arms  has  justly 
been  considered,  as  the  palladium  of  the  liberties  of  a  re¬ 
public  ;  since  it  offers  a  strong  moral  check  against  the 
usurpations  and  arbitrary  power  of  rulers  ;  and  it  will  gen¬ 
erally,  even  if  these  are  successful  in  the  first  instance, 
enable  the  people  to  resist  and  triumph  over  them.  And 
yet,  though  this  truth  would  seem  so  clear,  and  the  im¬ 
portance  of  a  well-regulated  militia  would  seem  so  unde¬ 
niable,  it  cannot  be  disguised,  that  among  the  American 
people  there  is  a  growing  indifference  to  any  system  of 
militia  discipline,  and  a  strong  disposition,  from  a  sense 
of  its  burdens,  to  be  rid  of  all  regulations.  How  it  is 
practicable  to  keep  the  people  duly  armed  without  some 
organization,  it  is  difficult  to  see.  There  is  certainly  no 
small  danger,  that  indifference  may  lead  to  disgust,  and 
disgust  to  contempt ;  and  thus  gradually  undermine  all  the 
protection  intended  by  this  clause  of  our  National  Bill  of 
Rights. 

§  452.  The  next  amendment  is,  uNo  soldier  shall 
in  time  of  peace  be  quartered  in  any  house  without  the 
consent  of  the  owner  ;  nor  in  time  of  war,  but  in  a  man¬ 
ner  to  be  prescribed  by  law.”  This  provision  speaks  for 
itself.  In  arbitrary  times  it  has  not  been  unusual  for  mil¬ 
itary  officers,  with  the  connivance,  or  under  the  sanction 
of  the  government,  to  billet  soldiers  upon  private  citi¬ 
zens,  without  the  slightest  regard  to  their  rights,  or  com¬ 
fort. 

§  453.  The  next  amendment  is,  u  The  enumeration 
in  the  Constitution  of  certain  rights  shall  not  be  constru¬ 
ed  to  deny,  or  disparage  others  retained  by  the  People.” 

23  '  xm. 


266  CONSTITUTION  OF  THE  UNITED  STATES. 

The  object  of  this  clause  is  to  get  rid  of  a  very  common 
but  perverse  misapplication  of  a  known  maxim,  that  an 
affirmation  of  a  power  in  particular  cases,  implies  a  nega¬ 
tion  of  it  in  all  other  cases  ;  and  so,  on  the  other  hand, 
that  a  negation  of  a  power  in  some  cases,  implies  an  af¬ 
firmation  of  it  in  all  others  not  denied.  The  maxim,  when 
rightly  understood,  is  perfectly  sound  and  safe  ;  but  it  has 
often  been  abused  to  purposes  injurious  to  the  rights  of 
the  people  ;  and  therefore  the  present  clause  was  wisely 
inserted  to  prevent  any  such  false  interpretations  and  glos¬ 
ses  of  the  Constitution. 

§  454.  The  next  and  last  amendment,  which  has  not 
been  already  considered,  is,  The  powers  not  dele¬ 
gated  to  the  United  States  by  the  Constitution,  nor  pro¬ 
hibited  by  it  to  the  States,  are  reserved  to  the  States  re¬ 
spectively,  or  to  the  People.”  This  amendment  follows 
out  the  object  of  the  preceding  ;  and  is  merely  an  af¬ 
firmation  of  a  rule  of  construction  of  the  Constitution, 
which,  upon  any  just  reasoning,  must  have  existed  without 
it.  Still,  it  is  important  as  a  security  against  two  opposite 
tendencies  of  opinion,  each  of  which  is  equally  subver¬ 
sive  of  the  true  import  of  the  Constitution.  The  one  is 
to  imply  all  powers,  which  may  be  useful  to  the  National 
Government,  which  are  not  expressly  prohibited;  and  the 
other  is,  to  deny  all  powers  to  the  National  Government, 
which  are  not  expressly  granted.  We  have  already  seen, 
that  there  are  many  implied  powers  necessarily  resulting 
from  the  nature  of  the  express  powers  ;  and  it  is  as  clear, 
that  no  power  can  properly  arise  by  implication  from  a 
mere  prohibition.  The  Government  of  the  United  States 
is  one  of  limited  powers  ;  and  no  authority  exists  beyond 
the  prescribed  limits,  marked  out  in  the  instrument  itself. 
Whatever  powers  are  not  granted,  necessarily  belong  to 
the  respective  States,  or  to  the  people  of  the  respective 
States,  if  they  have  not  been  confided  by  them  to  the 
State  Governments. 


CONCLUDING  REMARKS. 


267 


CHAPTER  XXXVIII. 

Concluding  Remarks. 

§  455.  We  have  now  reviewed  all  the  provisions  of 
the  original  Constitution  of  the  United  States,  and  all  the 
Amendments,  which  have  been  incorporated  into  it.  And 
here,  the  task,  originally  proposed  in  these  Commentaries, 
is  brought  to  a  close.  Many  reflections  naturally  crowd 
upon  the  mind  at  such  a  moment ;  many  grateful  recollec¬ 
tions  of  the  past ;  and  many  anxious  thoughts  of  the  future. 
The  past  is  secure.  It  is  unalterable.  The  seal  of  eter¬ 
nity  is  upon  it.  The  wisdom,  which  it  has  displayed,  and 
the  blessings,  which  it  has  bestowed,  cannot  be  obscured  ; 
neither  can  they  be  debased  by  human  folly,  or  by  human 
infirmity.  The  future,  is  that,  which  may  well  awaken 
the  most  earnest  solicitude,  both  for  the  virtue  and  the  per¬ 
manence  of  our  Republic.  The  fate  of  other  republics, 
their  rise,  their  progress,  their  decline,  and  their  fall,  are 
written  but  too  legibly  on  the  pages  of  history,  if,  indeed, 
they  were  not  continually  before  us  in  the  startling  frag¬ 
ments  of  their  ruins.  Those  republics  have  perished  ; 
and  have  perished  by  their  own  hands.  Prosperity  has 
enervated  them  ;  corruption  has  debased  them  ;  and  a 
venal  populace  has  consummated  their  destruction.  The 
people,  alternately  the  prey  of  military  chieftains  at  home, 
and  of  ambitious  invaders  from  abroad,  have  been  some¬ 
times  cheated  out  of  their  liberties  by  servile  demagogues  ; 
sometimes  betrayed  into  a  surrender  of  them  by  false  pa¬ 
triots  ;  and  sometimes  they  have  willingly  sold  them  for 
a  price  to  the  despot,  who  has  bidden  highest  for  his  vic¬ 
tims.  They  have  disregarded  the  warning  voice  of  their 
best  statesmen  ;  and  have  persecuted  and  driven  from 
office  their  truest  friends.  They  have  listened  to  the 
councils  of  fawning  sycophants,  or  base  calumniators  of 
the  wise  and  the  good.  They  have  reverenced  power 
more  in  its  high  abuses  and  summary  movements,  than  in 


26S  CONSTITUTION  OF  THE  UNITED  STATES. 

its  calm  and  constitutional  energy,  when  it  dispensed  bles¬ 
sings  with  an  unseen,  but  a  liberal  hand.  They  have  sur¬ 
rendered  to  faction,  what  belonged  to  the  common  inter¬ 
ests  and  common  rights  of  the  country.  Patronage  and 
party,  the  triumph  of  an  artful  popular  leader,  and  the  dis¬ 
contents  of  a  day,  have  outweighed,  in  their  view,  all  solid 
principles  and  institutions  of  government.  Such  are  the 
melancholy  lessons  of  the  past  history  of  republics  down 
to  our  own. 

§  456.  It  is  not  my  design  to  detain  the  reader  by  any 
elaborate  reflections  addressed  to  his  judgement,  either  by 
way  of  admonition  or  of  encouragement.  But  it  may  not 
be  wholly  without  use  to  glance  at  one  or  two  considera¬ 
tions,  upon  which  our  meditations  cannot  be  too  frequent¬ 
ly  indulged. 

§  457.  In  the  first  place,  it  cannot  escape  our  notice, 
how  exceedingly  difficult  it  is  to  settle  the  foundations  of 
any  government  upon  principles,  which  do  not  admit  of 
some  controversy  or  question.  The  very  elements,  out  of 
which  it  is  to  be  built,  are  susceptible  of  infinite  modifica¬ 
tions  ;  and  theory  too  often  deludes  us  by  the  attractive 
simplicity  of  its  plans,  and  imagination  by  the  visionary 
perfection  of  its  speculations.  In  theory,  a  government 
may  promise  the  most  perfect  harmony  of  operations  in 
all  its  various  combinations.  In  practice,  the  whole  ma¬ 
chinery  may  be  perpetually  retarded,  or  thrown  out  of 
order  by  accidental  mal-adjustments.  In  theory,  a  gov¬ 
ernment  may  seem  deficient  in  unity  of  design  and  sym¬ 
metry  of  parts  ;  and  yet,  in  practice,  it  may  work  with 
astonishing  accuracy  and  force  for  the  general  welfare. 
Whatever,  then,  has  been  found  to  work  well  by  experi¬ 
ence,  should  rarely  be  hazarded  upon  conjectural  improve¬ 
ments.  Time,  and  long  and  steady  operation  are  indis¬ 
pensable  to  the  perfection  of  all  social  institutions.  To 
be  of  any  value,  these  institutions  must  become  cemented 
with  the  habits,  the  feelings,  and  the  pursuits  of  the  peo¬ 
ple.  Every  change  discomposes  for  a  while  the  whole 
arrangements  of  the  system.  What  is  safe,  is  not  always 
expedient ;  what  is  new,  is  often  pregnant  with  unforeseen 
evils,  or  attracts  only  by  imaginary  good. 


CONCLUDING  REMARKS. 


269 


§  458.  In  the  next  place,  the  slighest  attention  to  the 
history  of  the  National  Constitution  must  satisfy  every 
reflecting  mind,  how  many  difficulties  attended  its  forma¬ 
tion  and  adoption,  from  real  or  imaginary  differences  of 
State  interests,  sectional  feelings,  and  local  institutions. 
It  is  an  attempt  to  create  a  National  sovereignty,  and  yet 
to  preserve  the  State  sovereignties  ;  although  it  is  impos¬ 
sible  to  assign  definite  boundaries  in  all  cases  to  the  pow¬ 
ers  of  each.  The  influence  of  the  disturbing  causes, 
which,  more  than  once  in  the  Convention,  were  on  the 
point  of  breaking  up  the  Union,  have  since  immeasurably 
increased  in  concentration  and  vigor.  The  very  inequal¬ 
ities  of  a  government,  confessedly  founded  in  a  compro¬ 
mise,  were  then  felt  with  a  strong  sensibility  ;  and  every 
new  source  of  discontent,  whether  accidental  or  perma¬ 
nent,  has  since  added  increased  activity  to  the  painful  sense 
of  these  inequalities.  The  North  cannot  but  perceive,  that 
it  has  yielded  to  the  South  a  superiority  of  Representatives 
already  amounting  to  twenty-five,  beyond  its  due  propor¬ 
tion  ;  and  the  South  imagines,  that,  with  all  this  prepon¬ 
derance  in  representation,  the  other  parts  of  the  Union 
enjoy  a  more  perfect  protection  of  their  interests,  than  its 
own.  The  West  feels  its  growing  power  and  weight  in 
the  Union  ;  and  the  Atlantic  States  begin  to  learn,  that 
the  sceptre  must  soon,  and  perhaps  forever,  depart  from 
them.  If,  under  these  circumstances,  the  Union  should 
once  be  broken  up,  it  is  impossible,  that  a  new  Constitu¬ 
tion  should  ever  be  formed,  embracing  the  whole  Terri¬ 
tory.  We  shall  be  divided  into  several  nations  or  con¬ 
federacies,  rivals  in  power,  pursuits,  and  interests  ;  too 
proud  to  brook  injury,  and  too  near  to  make  retaliation 
distant  or  ineffectual .  Our  very  animosities  will,  like 
those  of  all  other  kindred  nations,  become  more  deadly, 
because  our  lineage,  our  laws,  and  our  language  are  the 
same.  Let  the  history  of  the  Grecian  and  Italian  repub¬ 
lics  warn  us  of  our  dangers.  The  National  Constitution 
is  our  last,  and  our  only  security.  United  we  stand  ;  di¬ 
vided  we  fall. 

§  459.  If  this  Work  shall  but  inspire  the  rising  gene¬ 
ration  with  a  more  ardent  love  of  their  country,  an  un- 


270  CONSTITUTION  OF  THE  UNITED  STATES. 

quenchable  thirst  for  liberty,  and  a  profound  reverence 
for  the  Constitution  and  the  Union,  then  it  will  have  ac¬ 
complished  all,  that  its  author  ought  to  desire.  Let  the 
American  youth  never  forget,  that  they  possess  a  noble 
inheritance,  bought  by  the  toils,  and  sufferings,  and  blood 
of  their  ancestors  ;  and  capable,  if  wisely  improved,  and 
faithfully  guarded,  of  transmitting  to  their  latest  posterity 
all  the  substantial  blessings  of  life,  the  peaceful  enjoyment 
of  liberty,  of  property,  of  religion,  and  of  independence. 
The  structure  has  been  erected  by  architects  of  consum¬ 
mate  skill  and  fidelity  ;  its  foundations  are  solid  ;  its  com¬ 
partments  are  beautiful,  as  well  as  useful ;  its  arrangements 
are  full  of  wisdom  and  order  ;  and  its  defences  are  im¬ 
pregnable  from  without.  It  has  been  reared  for  immor¬ 
tality,  if  the  work  of  man  may  justly  aspire  to  such  a  title. 
It  may,  nevertheless,  perish  in  an  hour,  by  the  folly,  or 
corruption,  or  negligence  of  its  only  keepers,  the  peo¬ 
ple.  Republics  are  created  by  the  virtue,  public  spirit, 
and  intelligence  of  the  citizens.  They  fall,  when  the 
wise  are  banished  from  the  public  councils,  because  they 
dare  to  be  honest,  and  the  profligate  are  rewarded,  be¬ 
cause  they  flatter  the  people,  in  order  to  betray  them. 


APPENDIX. 


DECLARATION  OF  RIGHTS 

OF  THE  CONTINENTAL  CONGRESS,  OCTOBER  14,  1774. 

Whereas,  since  the  close  of  the  last  war,  the  British 
Parliament,  claiming  a  power  of  right,  to  bind  the  people 
of  America  by  Statutes  in  all  cases  whatsoever,  hath  in 
some  Acts  expressly  imposed  taxes  on  them,  and  in  oth¬ 
ers,  under  various  pretences,  but  in  fact  for  the  purpose  of 
raising  a  revenue,  hath  imposed  rates  and  duties  payable 
in  these  Colonies,  established  a  Board  of  Commissioners, 
with  unconstitutional  powers,  and  extended  the  jurisdiction 
of  Courts  of  Admiralty,  not  only  for  collecting  the  said 
duties,  but  for  the  trial  of  causes  merely  arising  within  the 
body  of  a  county  : 

And  whereas,  in  consequence  of  other  Statutes,  judges, 
who  before  held  only  estates  at  will  in  their  offices,  have 
been  made  dependent  on  the  Crown  alone,  for  their  sal¬ 
aries,  and  standing  armies  kept  in  times  of  peace  ;  and 
whereas,  it  has  lately  been  resolved  in  Parliament,  that 
by  force  of  a  Statute,  made  in  the  thirty-fifth  year  of  the 
reign  of  King  Henry  the  VTII.,  Colonists  may  be  trans¬ 
ported  to  England,  and  tried  there,  upon  accusations  for 
treasons  and  misprisions,  or  concealments,  of  treasons 
committed  in  the  Colonies,  and  by  a  late  Statute,  such 
trials  have  been  directed  in  cases  therein  mentioned  : 

And  whereas,  in  the  last  session  of  Parliament,  three 
Statutes  were  made  ;  one  entitled,  c  An  Act  to  discon¬ 
tinue,  in  such  manner,  and  for  such  time,  as  are  therein 
mentioned,  the  landing  and  discharging,  lading,  or  ship¬ 
ping  of  goods,  wares,  and  merchandize,  at  the  town,  and 
within  the  harbor,  of  Boston,  in  the  Province  of  Massa- 


272 


APPENDIX. 


chusetts  Bay  in  North  America another  entitled,  c  An 
Act  for  the  better  regulating  the  government  of  the  Prov¬ 
ince  of  Massachusetts  Bay  in  New  England, ’and  another 
entitled,  ‘An  Act  for  the  impartial  administration  of  just¬ 
ice,  in  the  cases  of  persons  questioned  for  any  act  done 
by  them  in  the  execution  of  the  law,  or  for  the  suppres¬ 
sion  of  riots  and  tumults,  in  the  Province  of  the  Massa¬ 
chusetts  Bay  in  New  England  And  another  Statute 
was  then  made,  “for  making  more  effectual  provision  for 
the  government  of  the  Province  of  Quebec,”  &c.  All 
which  Statutes  are  impolitic,  unjust,  and  cruel,  as  well  as 
unconstitutional,  and  most  dangerous  and  destructive  of 
American  rights  : 

And  whereas,  Assemblies  have  been  frequently  dis¬ 
solved,  contrary  to  the  rights  of  the  People,  when  they 
attempted  to  deliberate  on  grievances  ;  and  their  dutiful, 
humble,  loyal,  and  reasonable,  petitions  to  the  Crown  for 
redress,  have  been  repeatedly  treated  with  contempt,  by 
his  Majesty’s  ministers  of  state  : 

The  good  People  of  the  several  Colonies  of  New 
Hampshire,  Massachusetts  Bay,  Rhode  Island  and 
Providence  Plantations,  Connecticut,  New  York,  New 
Jersey,  Pennsylvania,  Newcastle,  Kent,  and  Sussex,  on 
Delaware,  Maryland,  Virginia,  North  Carolina,  and  South 
Carolina,  justly  alarmed  at  these  arbitrary  proceedings  of 
Parliament  and  Administration,  have  severally  elected, 
constituted,  and  appointed  Deputies  to  meet  and  sit  in 
General  Congress,  in  the  city  of  Philadelphia,  in  order 
to  obtain  such  establishment,  as  that  their  religion,  laws, 
and  liberties,  may  not  be  subverted  ;  whereupon  the  Dep¬ 
uties  so  appointed  being  now  assembled,  in  a  full  and 
free  representation  of  these  Colonies,  taking  into  their 
most  serious  consideration,  the  best  means  of  attaining 
the  ends  aforesaid,  do,  in  the  first  place,  as  Englishmen 
their  ancestors  in  like  cases  have  usually  done,  for  assert¬ 
ing  and  vindicating  their  rights  and  liberties,  DECLARE, 

That  the  inhabitants  of  the  English  Colonies  in  North 
America,  by  the  immutable  laws  of  Nature,  the  principles 
of  the  English  Constitution,  and  the  several  Charters  or 
Compacts,  have  the  following  RIGHTS. 


DECLARATION  OF  RIGHTS. 


273 


Resolved,  N.  C.  D.*  1.  That  they  are  entitled  to  life, 
liberty,  and  property  ;  and  they  have  never  ceded  to  any 
Sovereign  power  whatever,  a  right  to  dispose  of  either, 
without  their  consent. 

Resolved,  N.  C.  D.  2.  That  our  ancestors,  who 
first  settled  these  Colonies,  were,  at  the  time  of  their 
emigration  from  the  mother  Country,  entitled  to  all  the 
rights,  liberties,  and  immunities,  of  free  and  natural-born 
subjects,  within  the  realm  of  England. 

Resolved,  N.  C.  D.  3.  That,  by  such  emigration,  they 
by  no  means  forfeited,  surrendered,  or  lost,  any  of  those 
rights,  but  that  they  were,  and  their  descendants  now  are, 
entitled  to  the  exercise  and  enjoyment  of  all  such  of  them, 
as  their  local  and  other  circumstances  enable  them  to  ex¬ 
ercise  and  enjoy. 

Resolved,  4.  That  the  foundation  of  English  liberty, 
and  of  all  free  government,  is,  a  right  in  the  People  to 
participate  in  their  legislative  council  ;  and  as  the  English 
Colonists  are  not  represented,  and,  from  their  local  and 
other  circumstances,  cannot  properly  be  represented,  in  the 
British  Parliament,  they  are  entitled  to  a  free  and  ex¬ 
clusive  power  of  legislation  in  their  several  provincial 
legislatures,  where  their  right  of  representation  can  alone 
be  preserved,  in  all  cases  of  taxation  and  internal  polity, 
subject  only  to  the  negative  of  their  Sovereign,  in  such 
manner  as  has  been  heretofore  used  and  accustomed  ; 
but,  from  the  necessity  of  the  case,  and  a  regard  to  the 
mutual  interests  of  both  Countries,  we  cheerfully  consent 
to  the  operation  of  such  Acts  of  the  British  Parliament,  as 
are,  bona  fide,  restrained  to  the  regulation  of  our  external 
commerce,  for  the  purpose  of  securing  the  commercial 
advantages  of  the  whole  empire  to  the  mother  Country, 
and  the  commercial  benefits  of  its  respective  members  ; 
excluding  every  idea  of  taxation,  internal  or  external,  for 
raising  a  revenue  on  the  subjects  in  America,  without  their 
consent. 

Resolved,  N.  C.  D.  5.  That  the  respective  Colonies 
are  entitled  to  the  common  law  of  England,  and  more  es- 


*  JVemine  contradicente,  no  person  opposing,  or  disagreeing. 


274 


APPENDIX. 


pecially  to  the  great  and  inestimable  privilege  of  being 
tried  by  their  peers  of  the  vicinage,  according  to  the 
course  of  that  law. 

Resolved,  6.  That  they  are  entitled  to  the  benefit  of 
such  of  the  English  Statutes,  as  existed  at  the  time  of 
their  colonization  ;  and  which  they  have,  by  experience, 
respectively  found  to  be  applicable  to  their  several  local 
and  other  circumstances. 

Resolved,  N.  C.  D.  7.  That  these,  his  Majesty’s 
Colonies,  are  likewise  entitled  to  all  the  immunities  and 
privileges,  granted  and  confirmed  to  them  by  royal  Char¬ 
ters,  or  secured  by  their  several  codes  of  provincial  laws. 

Resolved,  N.  C.  D.  8.  That  they  have  a  right  peace¬ 
ably  to  assemble,  consider  of  their  grievances,  and  pe¬ 
tition  the  King  ;  and  that  all  prosecutions,  prohibitory 
proclamations,  and  commitments  for  the  same,  are  illegal. 

Resolved,  N.  C.  D.  9.  That  the  keeping  a  standing 
army  in  these  Colonies,  in  times  of  peace,  without  the 
consent  of  the  legislature  of  that  Colony  in  which  such 
army  is  kept,  is  against  law. 

Resolved,  N.  C.  D.  10.  It  is  indispensably  necessary 
to  good  government,  and  rendered  essential  by  the  Eng¬ 
lish  Constitution,  that  the  constituent  branches  of  the 
legislature  be  independent  of  each  other  ;  that,  therefore, 
the  exercise  of  legislative  power,  in  several  Colonies,  by 
a  Council  appointed,  during  pleasure,  by  the  Crown,  is 
unconstitutional,  dangerous,  and  destructive  to  the  free¬ 
dom  of  American  legislation. 

All  and  each  of  which,  the  aforesaid  Deputies,  in  be¬ 
half  of  themselves,  and  their  Constituents,  do  claim,  de¬ 
mand,  and  insist  on,  as  their  indubitable  rights  and  liber¬ 
ties  ;  which  cannot  be  legally  taken  from  them,  altered, 
or  abridged,  by  any  power  whatever,  without  their  own 
consent,  by  their  representatives,  in  their  several  provin¬ 
cial  Legislatures. 


DECLARATION  OF  INDEPENDENCE. 


275 


DECLARATION  OF  INDEPENDENCE. 

A  Declaration  by  the  Representatives  of  the  United 
States  of  America,  in  Congress  assembled. 

When,  in  the  course  of  human  events,  it  becomes  ne¬ 
cessary  for  one  people  to  dissolve  the  political  bands 
which  have  connected  them  with  another,  and  to  assume, 
among  the  powers  of  the  earth,  the  separate  and  equal 
station  to  which  the  laws  of  nature,  and  of  nature’s  God, 
entitle  them,  a  decent  respect  to  the  opinions  of  man¬ 
kind  requires,  that  they  should  declare  the  causes  which 
impel  them  to  the  separation. 

We  hold  these  truths  to  be  self-evident  :  that  all  men 
are  created  equal  ;  that  they  are  endowed,  by  their  Cre¬ 
ator,  with  certain  unalienable  rights  ;  that  among  these, 
are  life,  liberty,  and  the  pursuit  of  happiness.  That,  to 
secure  these  rights,  governments  are  instituted  among 
men,  deriving  their  just  powers  from  the  consent  of  the 
governed  ;  that,  whenever  any  form  of  government  be¬ 
comes  destructive  of  these  ends,  it  is  the  right  of  the 
people  to  alter  or  to  abolish  it,  and  to  institute  new  gov¬ 
ernment,  laying  its  foundation  on  such  principles,  and  or¬ 
ganizing  its  powers  in  such  form,  as  to  them  shall  seem 
most  likely  to  effect  their  safety  and  happiness.  Pru¬ 
dence,  indeed,  will  dictate,  that  governments,  long  estab¬ 
lished,  should  not  be  changed  for  light  and  transient  cau¬ 
ses  ;  and,  accordingly,  all  experience  hath  shown,  that 
mankind  are  more  disposed  to  suffer,  while  evils  are  suf¬ 
ferable,  than  to  right  themselves,  by  abolishing  the  forms 
t6  which  they  are  accustomed.  But,  when  a  long  train 
of  abuses  and  usurpations,  pursuing  invariably  the  same 
object,  evinces  a  design  to  reduce  them  under  absolute 
despotism,  it  is  their  right,  it  is  their  duty,  to  throw  off 
such  government,  and  to  provide  new  guards  for  their  fu¬ 
ture  security.  Such  has  been  the  patient  sufferance  of 
these  Colonies  ;  and  such  is  now  the  necessity  which  con¬ 
strains  them  to  alter  their  former  systems  of  government. 


276 


APPENDIX. 


The  history  of  the  present  King  of  Great  Britain  is  a  his¬ 
tory  of  repeated  injuries  and  usurpations,  all  having,  in 
direct  object,  the  establishment  of  an  absolute  tyranny- 
over  these  States.  To  prove  this,  let  facts  be  submitted 
to  a  candid  world. 

He  has  refused  his  assent  to  laws  the  most  wholesome 
and  necessary  for  the  public  good. 

He  has  forbidden  his  governors  to  pass  laws  of  imme¬ 
diate  and  pressing  importance,  unless  suspended  in  their 
operation  till  his  assent  should  be  obtained  ;  and,  when 
so  suspended,  he  has  utterly  neglected  to  attend  to  them. 

He  has  refused  to  pass  other  laws  for  the  accommoda¬ 
tion  of  large  districts  of  people,  unless  those  people  would 
relinquish  the  right  of  representation  in  the  legislature  :  a 
right  inestimable  to  them,  and  formidable  to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places  un¬ 
usual,  uncomfortable,  and  distant  from  the  depository  of 
their  public  records,  for  the  sole  purpose  of  fatiguing 
them  into  compliance  with  his  measures. 

He  has  dissolved  representative  houses,  repeatedly,  for 
opposing,  with  manly  firmness,  his  invasions  on  the  rights 
of  the  people. 

He  has  refused,  for  a  long  time,  after  such  dissolu¬ 
tions,  to  cause  others  to  be  elected  ;  whereby  the  legis¬ 
lative  powers,  incapable  of  annihilation,  have  returned  to 
the  people  at  large  for  their  exercise  ;  the  State  remain¬ 
ing,  in  the  mean  time,  exposed  to  all  the  dangers  of  inva¬ 
sion  from  without,  and  convulsions  within. 

He  has  endeavored  to  prevent  the  population  of  these 
States  ;  for  that  purpose,  obstructing  the  laws  for  natural¬ 
ization  of  foreigners  ;  refusing  to  pass  others  to  encour¬ 
age  their  migrations  hither,  and  raising  the  conditions  of 
new  appropriations  of  lands. 

He  has  obstructed  the  administration  of  justice,  by  re¬ 
fusing  his  assent  to  laws  for  establishing  judiciary  powers. 

He  has  made  judges  dependent  on  his  will  alone,  for 
the  tenure  of  their  offices,  and  the  amount  and  payment 
of  their  salaries. 

He  has  erected  a  multitude  of  new  offices,  and  sent 
hither  swarms  of  officers  to  harass  our  people,  and  eat 
out  their  substance. 


DECLARATION  OF  INDEPENDENCE. 


277 


He  has  kept  among  us,  in  time  of  peace,  standing  ar¬ 
mies,  without  the  consent  of  our  legislatures. 

He  has  affected  to  render  the  military  independent  of, 
and  superior  to,  the  civil  power. 

He  has  combined,  with  others,  to  subject  us  to  a  juris¬ 
diction  foreign  to  our  constitution,  and  unacknowledged 
by  our  laws  ;  giving  his  assent  to  their  acts  of  pretended 
legislation  : 

For  quartering  large  bodies  of  armed  troops  among  us  : 

For  protecting  them,  by  a  mock-trial,  from  punish¬ 
ment,  for  any  murders  which  they  should  commit  on  the 
inhabitants  of  these  States  : 

For  cutting  off  our  trade  with  all  parts  of  the  world  : 

For  imposing  taxes  on  us,  without  our  consent : 

For  depriving  us,  in  many  cases,  of  the  benefits  of  trial 
by  jury  : 

For  transporting  us  beyond  seas,  to  be  tried  for  pre¬ 
tended  offences  : 

For  abolishing  the  free  system  of  English  laws  in  a 
neighboring  Province,  establishing  therein  an  arbitrary 
government,  and  enlarging  its  boundaries,  so  as  to  render 
it,  at  once,  an  example  and  fit  instrument  for  introducing 
the  same  absolute  rule  into  these  Colonies  : 

For  taking  away  our  charters,  abolishing  our  most  val¬ 
uable  laws,  and  altering,  fundamentally,  the  forms  of  our 
governments  : 

For  suspending  our  own  legislatures,  and  declaring 
themselves  invested  with  power  to  legislate  for  us,  in  all 
cases  whatsoever. 

He  has  abdicated  government  here,  by  declaring  us 
out  of  his  protection,  and  waging  war  against  us. 

He  has  plundered  our  seas,  ravaged  our  coasts,  burnt 
our  towns,  and  destroyed  the  lives  of  our  people. 

He  is,  at  this  time,  transporting  large  armies  of  foreign 
mercenaries,  to  complete  the  works  of  death,  desolation, 
and  tyranny,  already  begun  with  circumstances  of  cruel¬ 
ty  and  perfidy,  scarcely  paralleled  in  the  most  barbarous 
ages,  and  totally  unworthy  the  head  of  a  civilized  nation. 

He  has  constrained  our  fellow-citizens,  taken  captive 
on  the  high  seas,  to  bear  arms  against  their  country,  to 

24  xiii. 


278 


APPENDIX. 


become  the  executioners  of  their  friends  and  brethren,  or 
to  fall  themselves  by  their  hands. 

He  has  excited  domestic  insurrections  amongst  us,  and 
has  endeavored  to  bring  on  the  inhabitants  of  our  fron 
tiers,  the  merciless  Indian  savages,  whose  known  rule  of 
warfare  is  an  undistinguished  destruction  of  all  ages,  sex¬ 
es,  and  conditions. 

In  every  stage  of  these  oppressions,  we  have  petition¬ 
ed  for  redress,  in  the  most  humble  terms  :  Our  repeated 
petitions  have  been  answered  only  by  repeated  injury. 
A  prince,  whose  character  is  thus  marked  by  every  act 
which  may  define  a  tyrant,  is  unfit  to  be  the  ruler  of  a 
free  people. 

Nor  have  we  been  wanting  in  attentions  to  our  British 
brethren.  We  have  warned  them,  from  time  to  time,  of 
attempts,  by  their  legislature,  to  extend  an  unwarrantable 
jurisdiction  over  us.  We  have  reminded  them  of  the 
circumstances  of  our  emigration  and  settlement  here. 
We  have  appealed  to  their  native  justice  and  magnanimi¬ 
ty,  and  we  have  conjured  them,  by  the  ties  of  our  com¬ 
mon  kindred,  to  disavow  these  usurpations,  which  would 
inevitably  interrupt  our  connexions  and  correspondence. 
They  too,  have  been  deaf  to  the  voice  of  justice  and  of 
consanguinity.  We  must,  therefore,  acquiesce  in  the 
necessity,  which  denounces  our  separation,  and  hold 
them,  as  we  hold  the  rest  of  mankind,  enemies  in  war, 
in  peace,  friends. 

We,  therefore,  the  representatives  of  the  United 
States  of  America,  in  General  Congress  assem¬ 
bled,  appealing  to  the  Supreme  Judge  of  the  World,  for 
the  rectitude  of  our  intentions,  do,  in  the  name,  and  by 
authority,  of  the  good  People  of  these  Colonies,  solemnly 
publish  and  declare,  That  these  United  Colonies  are, 
and  of  right  ought  to  be,  Free  and  Independent 
States  ;  that  they  are  absolved  from  all  allegiance  to 
the  British  crown,  and  that  all  political  connexion  between 
them  and  the  state  of  Great  Britain  is,  and  ought  to  be, 
totally  dissolved  ;  and  that,  as  Free  and  Independent 
States,  they  have  full  power  to  levy  war,  conclude 
peace,  contract  alliances,  establish  commerce,  and  to  do 


ARTICLES  OF  CONFEDERATION. 


279 


all  other  acts  and  things,  which  Independent  States 
may  of  right  do.  And,  for  the  support  of  this  decla¬ 
ration,  with  a  firm  reliance  on  the  protection  of  Divine 
'Providence,  vve  mutually  pledge  to  each  other,  oui 
lives,  our  fortunes,  and  our  sacred  honor. 


ARTICLES  OF  CONFEDERATION 

And  perpetual  union,  between  the  States  of  New 
Hampshire,  Massachusetts  Bay,  Rhode  Island  and  Prov¬ 
idence  Plantations,  Connecticut,  New  York,  New  Jer¬ 
sey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North 
Carolina,  South  Carolina,  and  Georgia. 

ARTICLE  I. 

The  style  of  this  confederacy  shall  be,  u  The 
United  States  of  America.” 

ARTICLE  II. 

Each  State  retains  its  sovereignty,  freedom,  and  inde¬ 
pendence,  and  every  power,  jurisdiction,  and  right,  which 
is  not  by  this  Confederation,  expressly  delegated  to  the 
United  States  in  Congress  assembled. 

ARTICLE  III. 

The  said  States  hereby  severally  enter  into  a  firm 
league  of  friendship  with  each  other,  for  their  common 
defence,  the  security  of  their  liberties,  and  their  mutual 
and  general  welfare  ;  binding  themselves  to  assist  each 
other  against  all  force  offered  to,  or  attacks  made  upon, 
them,  or  any  of  them,  on  account  of  religion,  sovereign¬ 
ty,  trade,  or  any  other  pretence  whatever. 

ARTICLE  IV. 

The  better  to  secure  and  perpetuate  mutual  friendship 
and  intercourse  among  the  people  of  the  different  States 
in  this  Union,  the  free  inhabitants  of  each  of  these  States, 


2S0 


APPENDIX. 


paupers,  vagabonds,  and  fugitives  from  justice,  excepted, 
shall  be  entitled  to  all  privileges  and  immunities  of  free 
citizens,  in  the  several  States  ;  and  the  people  of  each 
State  shall  have  free  ingress  and  regress  to  and  from  any 
other  State  ;  and  shall  enjoy  therein  all  the  privileges  of 
trade  and  commerce,  subject  to  the  same  duties,  impo¬ 
sitions,  and  restrictions, as  the  inhabitants  thereof  respec¬ 
tively  ;  provided,  that  such  restriction  shall  not  extend 
so  far  as  to  prevent  the  removal  of  property  imported  in¬ 
to  any  State,  to  any  other  State  of  which  the  owner  is  an 
inhabitant  ;  provided  also,  that  no  imposition,  duties,  or 
restriction,  shall  be  laid  by  any  State,  on  the  property  of 
the  United  States,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with,  treason,  felo¬ 
ny,  or  other  high  misdemeanor,  in  any  State,  shall  flee 
from  justice,  and  be  found  in  any  of  the  United  States, 
he  shall,  upon  demand  of  the  governor  or  executive  pow¬ 
er  of  the  State  from  which  he  fled,  be  delivered  up,  and 
removed  to  the  State  having  jurisdiction  of  his  offence. 

Full  faith  and  credit  shall  be  given  in  each  of  these 
States  to  the  records,  acts,  and  judicial  proceedings,  of 
the  courts  and  magistrates  of  every  other  State. 

ARTICLE  V. 

For  the  more  convenient  management  of  the  general 
interests  of  the  United  States,  delegates  shall  be  annual¬ 
ly  appointed  in  such  manner  as  the  legislature  of  each 
State  shall  direct,  to  meet  in  Congress  on  the  first  Mon¬ 
day  in  November,  in  every  year,  with  a  power  reserved 
to  each  State  to  recall  its  delegates,  or  any  of  them,  at 
any  time  within  the  year,  and  send  others  in  their  stead, 
for  the  remainder  of  the  year. 

No  State  shall  be  represented  in  Congress  by  less  than 
two,  nor  by  more  than  seven,  members  ;  and  no  person 
shall  be  capable  of  being  a  delegate  for  more  than  three 
years  in  any  term  of  six  years  ;  nor  shall  any  person,  be¬ 
ing  a  delegate,  be  capable  of  holding  any  office  under  the 
United  States,  for  which  he,  or  another  for  his  benefit, 
receives  any  salary,  fees,  or  emolument  of  any  kind. 

Each  State  shall  maintain  its  own  delegates  in  a  meet- 


ARTICLES  OF  CONFEDERATION. 


281 


ing  of  the  States,  and  while  they  act  as  members  of  the 
committee  of  the  States. 

In  determining  questions  in  the  United  States  in  Con¬ 
gress  assembled,  each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not 
be  impeached  or  questioned,  in  any  court  or  place  out  of 
Congress  ;  and  the  members  of  Congress  shall  be  pro¬ 
tected  in  their  persons  from  arrests  and  imprisonment, 
during  the  time  of  their  going  to,  and  from,  and  attend¬ 
ance  on,  Congress,  except  for  treason,  felony,  or  breach 
of  the  peace. 

ARTICLE  VI. 

No  State,  without  the  consent  of  the  United  States  in 
Congress  assembled,  shall  send  any  embassy  to,  or  re¬ 
ceive  any  embassy  from,  or  enter  into  any  conference, 
agreement,  alliance,  or  treaty,  with  any  king,  prince,  or 
state  ;  nor  shall  any  person,  holding  any  office  of  profit, 
or  trust,  under  the  United  States,  or  any  of  them,  accept 
of  any  present,  emolument,  office,  or  title,  of  any  kind 
whatever,  from  any  king,  prince,  or  foreign  state  ;  nor 
shall  the  United  States  in  Congress  assembled,  or  any 
of  them,  grant  any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty, 
confederation,  or  alliance  whatever,  between  them,  with¬ 
out  the  consent  of  the  United  States  in  Congress  assem¬ 
bled,  specifying  accurately  the  purposes  for  which  the 
same  is  to  be  entered  into,  and  how  long  it  shall  con¬ 
tinue. 

No  State  shall  lay  any  imposts  or  duties,  which  may 
interfere  with  any  stipulations  in  treaties  entered  into,  by 
the  United  States  in  Congress  assembled,  with  any  king, 
prince,  or  state,  in  pursuance  of  any  treaties,  already  pro¬ 
posed  by  Congress  to  the  courts  of  France  and  Spain. 

No  vessels  of  war  shall  be  kept  up,  in  time  of  peace, 
by  any  State,  except  such  number  only,  as  shall  be 
deemed  necessary,  by  the  United  States  in  Congress  as¬ 
sembled,  for  the  defence  of  such  State,  or  its  trade  ;  nor 
shall  any  body  of  forces  be  kept  up  by  any  State,  in 
time  of  peace,  except  such  number  only,  as  in  the  judge- 

24* 


232 


APPENDIX. 


ment  of  the  United  States  in  Congress  assembled,  shall 
be  deemed  requisite  to  garrison  the  forts  necessary  for 
the  defence  of  such  State  :  but  every  Slate  shall  always 
keep  up  a  well-regulated  and  disciplined  militia,  suffi¬ 
ciently  armed  and  accoutred  ;  and  shall  provide  and  con¬ 
stantly  have  ready  for  use,  in  public  stores,  a  due  number 
of  field-pieces  and  tents,  and  a  proper  quantity  of  arms, 
ammunition,  and  camp  equipage. 

No  State  shall  engage  in  any  war,  without  the  consent 
of  the  United  States  in  Congress  assembled,  unless  such 
State  be  actually  invaded  by  enemies,  or  shall  have  re¬ 
ceived  certain  advice  of  a  resolution  being  formed  by 
some  nation  of  Indians  to  invade  such  State,  and  the 
danger  is  so  imminent  as  not  to  admit  of  a  delay,  till  the 
United  States  in  Congress  assembled  can  be  consulted  ; 
nor  shall  any  State  grant  commissions  to  any  ship  or 
vessels  of  war,  nor  letters  of  marque  or  reprisal,  except 
it  be  after  a  declaration  of  war  by  the  United  States  in 
Congress  assembled  ;  and  then  only  against  the  kingdom 
or  state,  and  the  subjects  thereof,  against  which  war  has 
been  so  declared,  and  under  such  regulations  as  shall  be 
established  by  the  United  States  in  Congress  assembled  ; 
unless  such  State  be  infested  by  pirates,  in  which  vessels 
of  war  may  be  fitted  out  for  that  occasion,  and  kept  so 
long  as  the  danger  shall  continue,  or  until  the  United 
States  in  Congress  assembled  shall  determine  otherwise. 

ARTICLE  VII. 

When  land  forces  are  raised  by  any  State  for  the 
common  defence,  all  officers  of,  or  under,  the  rank  of 
colonel,  shall  be  appointed  by  the  legislature  of  each 
State  respectively,  by  whom  such  forces  shall  be  raised, 
or  in  such  manner  as  such  State  shall  direct  ;  and  all  va¬ 
cancies  shall  be  filled  uo  by  the  State  wrhich  first  made 
the  appointment. 

ARTICLE  VIII. 

All  charges  of  war,  and  all  other  expenses  that  shall 
be  incurred  for  the  common  defence,  or  general  welfare, 
and  allowed  by  the  United  States  in  Congress  assem- 


ARTICLES  OF  CONFEDERATION. 


283 


bled,  shall  be  defrayed  out  of  a  common  treasury,  which 
shall  be  supplied  by  the  several  States  in  proportion  to 
the  value  of  all  land  within  each  State,  granted  to,  or 
surveyed  for,  any  person,  as  such  land  and  the  buildings 
and  improvements  thereon  shall  be  estimated,  according 
to  such  mode  as  the  United  States  in  Congress  assem¬ 
bled  shall,  from  time  to  time,  direct  and  appoint.  The 
taxes  for  paying  that  proportion,  shall  be  laid  and  levied 
by  the  authority  and  direction  of  the  legislatures  of  the 
several  States,  within  the  time  agreed  upon  by  the  Unit¬ 
ed  States  in  Congress  assembled. 

ARTICLE  IX. 

The  United  States  in  Congress  assembled,  shall  have 
the  sole  and  exclusive  right  and  power,  of  determining 
on  peace  and  war,  except  in  the  cases,  mentioned  in  the 
sixth  article  :  Of  sending  and  receiving  ambassadors  : 
Entering  into  treaties  and  alliances  ;  provided  that  no 
treaty  of  commerce  shall  be  made,  whereby  the  legisla¬ 
tive  power  of  the  respective  States  shall  be  restrained 
from  imposing  such  imposts  and  duties  on  foreigners  as 
their  own  people  are  subjected  to,  or  from  prohibiting 
the  exportation  or  importation  of  any  species  of  goods 
or  commodities  whatever  :  Of  establishing  rules  for  de¬ 
ciding,  in  all  cases,  what  captures  on  land  or  water  shall 
be  legal  ;  and  in  what  manner  prizes,  taken  by  land  or 
naval  forces,  in  the  service  of  the  United  States,  shall 
be  divided  or  appropriated  :  Of  granting  letters  of  marque 
and  reprisal,  in  times  of  peace  :  Appointing  courts,  for 
the  trial  of  piracies  and  felonies,  committed  on  the  high 
seas  ;  and  establishing  courts,  for  receiving  and  deter¬ 
mining,  finally,  appeals  in  all  cases  of  captures  ;  provid¬ 
ed,  that  no  member  of  Congress  shall  be  appointed  a 
judge  of  any  of  the  said  courts. 

The  United  States  in  Congress  assembled  shall  also 
be  the  last  resort,  on  appeal,  in  all  disputes  and  differen¬ 
ces  now  subsisting,  or  that  hereafter  may  arise,  between 
two  or  more  States,  concerning  boundary,  jurisdiction, 
or  any  other  cause  whatever  ;  which  authority  shall  al¬ 
ways  be  exercised  in  the  manner  following  :  Whenev- 


284 


APPENDIX. 


er  the  legislative  or  executive  authority,  or  lawful  agent, 
of  any  State,  in  controversy  with  another,  shall  present  a 
petition  to  Congress,  stating  the'1  matter  in  question,  and 
praying  for  a  hearing,  notice  thereof  shall  be  given,  by 
order  of  Congress,  to  the  legislative  or  executive  author¬ 
ity  of  the  other  State  in  controversy  ;  and  a  day  assign¬ 
ed,  for  the  appearance  of  the  parties  by  their  lawful 
agents,  who  shall  then  be  directed  to  appoint,  by  joint 
consent,  commissioners  or  judges,  to  constitute  a  court 
for  hearing  and  determining  the  matter  in  question  :  but 
if  they  cannot  agree,  Congress  shall  name  three  persons, 
out  of  each  of  the  United  States  ;  and  from  the  list  of 
such  persons,  each  party  shall  alternately  strike  out  one, 
the  petitioners  beginning,  until  the  number  shall  be  redu¬ 
ced  to  thirteen  ;  and  from  that  number,  not  less  than 
seven,  nor  more  than  nine,  names,  as  Congress  shall  di¬ 
rect,  shall,  in  the  presence  of  Congress,  be  drawn  out, 
by  lot ;  and  the  persons  whose  names  shall  be  so  drawn, 
or  any  five  of  them,  shall  be  commissioners  or  judges,  to 
hear  and  finally  determine  the  controversy,  so  always  as 
a  major  part  of  the  judges,  wTho  shall  hear  the  cause, 
shall  agree  in  the  determination.  And  if  either  party 
shall  neglect  to  attend  at  the  day  appointed,  without 
showing  reasons  which  Congress  shall  judge  sufficient, 
or  being  present  shall  refuse  to  strike,  the  Congress  shall 
proceed  to  nominate  three  persons  out  of  each  State  ; 
and  the  Secretary  of  Congress  shall  strike  in  behalf  of 
such  party  absent  or  refusing  ;  and  the  judgement  and 
sentence  of  the  court,  to  be  appointed  in  the  manner  be¬ 
fore  prescribed,  shall  be  final  and  conclusive.  And  if 
any  of  the  parties  shall  refuse  to  submit  to  the  authority 
of  such  court,  or  to  appear,  or  defend  their  claim  or 
cause,  the  court  shall,  nevertheless,  proceed  to  pro¬ 
nounce  sentence  or  judgement,  which  shall  in  like  man¬ 
ner  be  final  and  decisive  ;  the  judgement,  or  sentence, 
and  other  proceedings,  being,  in  either  case,  transmitted  to 
Congress,  and  lodged  among  the  acts  of  Congress,  for  the 
security  of  the  parties  concerned  :  Provided,  that  every 
commissioner,  before  he  sits  in  judgement,  shall  take  an 
oath,  to  be  administered  by  one  of  the  judges  of  the  su- 


ARTICLES  OF  CONFEDERATION. 


285 


preme  or  superior  court  of  the  State,  where  the  cause 
shall  be  tried,  4  Well  and  truly  to  hear  and  determine 
the  matter  in  question,  according  to  the  best  of  his  judge¬ 
ment,  without  favor,  affection,  or  hope  of  reward  Pro¬ 
vided,  also,  that  no  State  shall  be  deprived  of  territory 
for  the  benefit  of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil 
claimed  under  different  grants  of  two  or  more  States, 
whose  jurisdictions,  as  they  may  respect  such  lands  and 
the  States  which  passed  such  grants,  are  adjusted,  the  said 
grants,  or  either  of  them,  being  at  the  same  time  claimed 
to  have  originated  antecedent  to  such  settlement  of  juris¬ 
diction,  shall,  on  the  petition  of  either  party  to  the  Con¬ 
gress  of  the  United  States,  be  finally  determined,  as  near 
as  may  be,  in  the  same  manner  as  is  before  prescribed  for 
deciding  disputes  respecting  territorial  jurisdiction  between 
different  States. 

The  United  States  in  Congress  assembled  shall  also 
have  the  sole  and  exclusive  right  and  power  of  regulating 
the  alloy  and  value  of  coin  struck  by  their  own  authority, 
or  by  that  of  the  respective  States  :  Fixing  the  standard 
of  weights  and  measures  throughout  the  United  States  : 
Regulating  the  trade  and  managing  all  affairs  with  the  In¬ 
dians,  not  members  of  any  of  the  States  ;  provided  that 
the  legislative  right  of  any  State  within  its  own  limits  be 
not  infringed  or  violated  :  Establishing  and  regulating 
post-offices  from  one  State  to  another,  throughout  all  the 
United  States,  and  exacting  such  postage  on  the  papers 
passing  through  the  same  as  may  be  requisite  to  defray 
the  expenses  of  the  said  office  :  Appointing  all  officers  of 
the  land  forces  in  the  service  of  the  United  States,  ex¬ 
cepting  regimental  officers  :  Appointing  all  the  officers  of 
the  naval  forces,  and  commissioning  all  officers  whatevei 
in  the  service  of  the  United  States  :  Making  rules  for  the 
government  and  regulation  of  the  land  and  naval  forces, 
and  directing  their  operations. 

The  United  States  in  Congress  assembled  shall  have 
authority  to  appoint  a  committee,  to  sit  in  the  recess  of  * 
Congress,  to  be  denominated  a  committee  of  the 
states,  and  to  consist  of  one  delegate  from  each  State  ; 


236 


APPENDIX. 


and  to  appoint  such  other  committees  and  civil  officers  as 
may  be  necessary  for  managing  the  general  affairs  of  the 
United  States  under  their  direction  :  To  appoint  one  of 
their  number  to  preside  ;  provided,  that  no  person  be  al¬ 
lowed  to  serve  in  the  office  of  President  more  than  one 
year  in  any  term  of  three  years.  To  ascertain  the  neces¬ 
sary  sums  of  money  to  be  raised  for  the  service  of  the 
United  States,  and  to  appropriate  and  apply  the  same  for 
defraying  the  publick  expenses  :  To  borrow  money,  or 
emit  bills  on  the  credit  of  the  United  States,  transmitting 
every  half  year  to  the  respective  States  an  account  of  the 
sums  of  money  so  borrowed  or  emitted  :  To  build  and 
equip  a  navy  :  To  agree  upon  the  number  of  land  forces, 
and  to  make  requisitions  from  each  State  for  its  quota, 
in  proportion  to  the  number  of  white  inhabitants  in  such 
State,  which  requisition  shall  be  binding  ;  and  thereupon 
the  legislature  of  each  State  shall  appoint  the  regimental 
officers,  raise  the  men,  and  clothe,  arm,  and  equip  them, 
in  a  soldierlike  manner,  at  the  expense  of  the  United 
States  ;  and  the  officers  and  men  so  clothed,  armed,  and 
equipped,  shall  march  to  the  place  appointed,  and  within 
the  time  agreed  on,  by  the  United  States  in  Congress  as¬ 
sembled  :  but  if  the  United  States  in  Congress  assembled 
shall,  on  consideration  of  circumstances,  judge  proper  that 
any  State  should  not  raise  men,  or  should  raise  a  smaller 
number  than  its  quota,  and  that  any  other  State  should 
raise  a  greater  number  of  men  than  its  quota  thereof,  such 
extra  number  shall  be  raised,  officered,  clothed,  armed, 
and  equipped,  in  the  same  manner  as  the  quota  of  such 
State  ;  unless  the  legislature  of  such  State  shall  judge  that 
such  extra  number  cannot  be  safely  spared  out  of  the 
same  ;  in  which  case  they  shall  raise,  officer,  clothe, 
arm,  and  equip,  as  many  of  such  extra  number  as  they 
judge  can  be  safely  spared  :  and  the  officers  and  men  so 
clothed,  armed,  and  equipped,  shall  march  to  the  place 
appointed,  and  within  the  time  agreed  on,  by  the  United 
States  in  Congress  assembled. 

The  United  States  in  Congress  assembled  shall  never 
engage  in  a  war  ;  nor  grant  letters  of  marque  and  reprisal 
in  time  of  peace  ;  nor  enter  into  any  treaties  or  alliances  ; 


ARTICLES  OF  CONFEDERATION. 


287 


nor  coin  money  ;  nor  regulate  the  value  thereof ;  nor  as¬ 
certain  the  sums  and  expenses  necessary  for  the  defence 
and  welfare  of  the  United  States,  or  any  of  them  ;  nor 
emit  bills  ;  nor  borrow  money  on  the  credit  of  the  United 
Stales  ;  nor  appropriate  money  ;  nor  agree  upon  the 
number  of  vessels  of  war  to  be  built  or  purchased,  or  the 
number  of  land  or  sea  forces  to  be  raised  ;  nor  appoint  a 
Commander-in-Chief  of  the  army  or  navy  ;  unless  nine 
States  assent  to  the  same  ;  nor  shall  a  question  on  any 
other  point,  except  for  adjourning  from  day  to  day,  be 
determined,  unless  by  the  votes  of  a  majority  of  the  Uni¬ 
ted  States  in  Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power 
to  adjourn  to  any  time  within  the  year,  and  to  any  place 
within  the  United  States,  so  that  no  period  of  adjourn¬ 
ment  be  for  a  longer  duration  than  the  space  of  six  months  ; 
and  shall  publish  the  journal  of  their  proceedings  monthly, 
except  such  parts  thereof  relating  to  treaties,  alliances,  or 
military  operations,  as  in  their  judgement  require  secrecy  ; 
and  the  yeas  and  nays  of  the  delegates  of  each  State,  on 
any  question,  shall  be  entered  on  the  journal,  when  it  is 
desired  by  any  delegate  ;  and  the  delegates  of  a  State,  or 
any  of  them,  at  his  or  their  request,  shall  be  furnished 
with  a  transcript  of  the  said  journal,  except  such  parts  as 
are  above  excepted,  to  lay  before  the  legislatures  of  the 
several  States. 

ARTICLE  X. 

The  Committee  of  the  States,  or  any  nine  of  them, 
shall  be  authorized  to  execute,  in  the  recess  of  Congress, 
such  of  the  powers  of  Congress  as  the  United  States  in 
Congress  assembled,  by  the  consent  of  nine  States,  shall, 
from  time  to  time,  think  expedient  to  vest  them  with  ; 
provided,  that  no  power  be  delegated  to  the  said  Com¬ 
mittee,  for  the  exercise  of  which,  by  the  articles  of  Con¬ 
federation,  the  voice  of  nine  States  in  the  Congress  of 
the  United  States  assembled  is  requisite. 

ARTICLE  XI. 

Canada,  acceding  to  this  Confederation,  and  joining 


2SS 


APPENDIX. 


in  the  measures  of  the  United  States,  shall  be  admitted 
into,  and  entitled  to  all  the  advantages  of,  this  Union. 
But  no  other  Colony  shall  be  admitted  into  the  same, 
unless  such  admission  be  agreed  to  by  nine  States. 

ARTICLE  XII. 

All  bills  of  credit  emitted,  moneys  borrowed,  and  debts 
contracted,  by  or  under  the  authority  of  Congress,  before 
the  assembling  of  the  United  States,  in  pursuance  of  the 
present  Confederation,  shall  be  deemed  and  considered 
as  a  charge  against  the  United  States,  for  payment  and 
satisfaction  whereof,  the  said  United  States,  and  the  pub¬ 
lic  faith,  are  hereby  solemnly  pledged. 

ARTICLE  XIII. 

Every  State  shall  abide  by  the  determinations  of  the 
United  States  in  Congress  assembled,  on  all  questions 
which,  by  this  Confederation,  are  submitted  to  them. 
And  the  Articles  of  this  Confederation  shall  be  inviola¬ 
bly  observed  by  every  State  ;  and  the  Union  shall  be 
perpetual.  Nor  shall  any  alteration  at  any  time  hereafter 
be  made  in  any  of  them,  unless  such  alteration  be  agreed 
to,  in  a  Congress  of  the  United  States,  and  be  afterwards 
confirmed  by  the  legislatures  of  every  State. 

And  whereas,  it  hath  pleased  the  great  Governor  of 
the  World,  to  incline  the  hearts  of  the  legislatures  we 
respectively  represent  in  Congress  to  approve  of,  and  to 
authorize  us  to  ratify,  the  said  Articles  of  Confederation 
and  Perpetual  Union  : 

Know  Ye,  That  we,  the  undersigned  delegates,  by 
virtue  of  the  power  and  authority  to  us  given  for  that 
purpose,  do,  by  these  presents,  in  the  name,  and  in  be¬ 
half,  of  our  respective  constituents,  fully  and  entirely 
ratify  and  confirm  each  and  every  of  the  said  Articles  of 
Confederation  and  Perpetual  Union,  and  all  and  singular 
the  matters  and  things  therein  contained.  And  we  do 
further  solemnly  plight  and  engage  the  faith  of  our  res¬ 
pective  constituents,  that  they  shall  abide  by  the  deter¬ 
minations  of  the  United  States  in  Congress  assembled, 
on  all  questions,  which,  by  the  said  Confederation,  are 


CONSTITUTION  OF  THE  UNITED  STATES.  289 

V 

submitted  to  them  ;  and  that  the  articles  thereof  shall  be 
inviolably  observed  by  the  States  we  respectively  repre¬ 
sent  ;  and  that  the  Union  shall  be  perpetual. 

In  witness  whereof,  we  have  hereunto  set  our  hands  in 
Congress. 

Done  at  Philadelphia,  in  the  State  of  Pennsylvania,  the 
ninth  day  of  July,  in  the  year  of  our  Lord  one  thousand 
seven  hundred  and  seventy-eight,  and  in  the  third  year 
of  the  Independence  of  America. 


CONSTITUTION 

OF  THE 

UNITED  STATES  OF  AMERICA. 

We,  the  People  of  the  United  States,  in  order  to 
form  a  more  perfect  union,  establish  justice,  insure  do¬ 
mestic  tranquillity,  provide  for  the  common  defence,  pro¬ 
mote  the  general  welfare,  and  secure  the  blessings  of  lib¬ 
erty  to  ourselves  and  our  posterity,  do  ordain  and  estab¬ 
lish  this  Constitution  for  the  United  States  of  America. 

ARTICLE  I. 

SECTION  1. 

1.  All  Legislative  powers  herein  granted,  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall 
consist  of  a  Senate  and  House  of  Representatives. 

SECTION  2. 

1.  The  House  of  Representatives  shall  be  composed 
of  members  chosen  every  second  year  by  the  people  of 
the  several  States,  and  the  electors  in  each  State  shall 
have  the  qualifications  requisite  for  electors  of  the  most 
numerous  branch  of  the  State  legislature. 

2.  No  person  shall  be  a  Representative  who  shall  not 
have  attained  to  the  age  of  twenty-five  years,  and  been 

25  xin. 


290 


APPENDIX. 


seven  years  a  citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of  that  State  in  which 
he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  appor¬ 
tioned  among  the  several  States  which  may  be  included 
within  this  Union,  according  to  their  respective  numbers, 
which  shall  be  determined  by  adding  to  the  whole  num- 
ber  of  free  persons,  including  those  bound  to  service  for 
a  term  of  years,  and  excluding  Indians  not  taxed,  three 
fifths  of  all  other  persons.  The  actual  enumeration  shall 
be  made  within  three  years  after  the  first  meeting  of  the 
Congress  of  the  United  States,  and  within  every  subse¬ 
quent  term  of  ten  years,  in  such  manner  as  they  shall  by 
law  direct.  The  number  of  Representatives  shall  not  ex¬ 
ceed  one  for  every  thirty  thousand,  but  each  State  shall 
have  at  least  one  Representative  ;  and  until  such  enumer¬ 
ation  shall  be  made,  the  State  of  New  Hampshire  shall 
be  entitled  to  choose  three,  Massachusetts  eight,  Rhode 
Island  and  Providence  Plantations  one,  Connecticut  five, 
New  York  six,  New  Jersey  four,  Pennsylvania  eight, 
Delaware  one,  Maryland  six,  Virginia  ten,  North  Caro¬ 
lina  five,  South  Carolina  five,  and  Georgia  three. 

4.  When  vacancies  happen  in  the  representation  from 
any  State,  the  executive  authority  thereof  shall  issue 
writs  of  election  to  fill  such  vacancies. 

5.  The  House  of  Representatives  shall  choose  their 
Speaker  and  other  officers  ;  and  shall  have  the  sole  pow¬ 
er  of  impeachment. 

SECTION  3. 

1.  The  Senate  of  the  United  States  shall  be  compos¬ 
ed  of  two  Senators  from  each  State,  chosen  by  the  legis¬ 
lature  thereof,  for  six  years  ;  and  each  Senator  shall  have 
one  vote. 

2.  Immediately  after  they  shall  be  assembled  in  con¬ 
sequence  of  the  first  election,  they  shall  be  divided,  as 
equally  as  may  be,  into  three  classes.  The  seats  of  the 
Senators  of  the  first  class  shall  be  vacated  at  the  expira¬ 
tion  of  the  second  year  ;  of  the  second  class,  at  the  expi¬ 
ration  of  the  fourth  year  ;  and  of  the  third  class,  at  the 


CONSTITUTION  OF  THE  UNITED  STATES.  291 


expiration  of  the  sixth  year  ;  so  that  one  third  may  be 
chosen  every  second  year  ;  and  if  vacancies  happen  by 
resignation,  or  otherwise,  during  the  recess  of  the  legis¬ 
lature  of  any  State,  the  executive  thereof  may  make  tem¬ 
porary  appointments  until  the  next  meeting  of  the  legisla¬ 
ture,  which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  Senator  who  shall  not  have  at¬ 
tained  to  the  age  of  thirty  years,  and  been  nine  years  a 
citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  for  which  he  shall 
be  chosen. 

4.  The  Vice-President  of  the  United  States  shall  be 

President  of  the  Senate,  but  shall  have  no  vote,  unless 
they  be  equally  divided.  * 

5.  The  Senate  shall  choose  their  other  officers,  and 
also  a  President  pro  tempore ,  in  the  absence  of  the  Vice- 
President,  or  when  he  shall  exercise  the  office  of  Presi¬ 
dent  of  the  United  States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all 
impeachments.  When  sitting  for  that  purpose,  they 
shall  be  on  oath  or  affirmation.  When  the  President  of 
the  United  States  is  tried,  the  Chief  Justice  shall  pre¬ 
side  ;  and  no  person  shall  be  convicted  without  the  con¬ 
currence  of  two  thirds  of  the  members  present. 

7.  Judgement  in  cases  of  impeachment  shall  not  ex¬ 
tend  further  than  to  removal  from  office,  and  disqualifica¬ 
tion  to  hold  and  enjoy  any  office  of  honor,  trust,  or  pro¬ 
fit,  under  the  United  States  ;  but  the  party  convicted 
shall,  nevertheless,  be  liable  and  subject  to  indictment, 
trial,  judgement,  and  punishment,  according  to  law. 

SECTION  4. 

1.  The  times,  places,  and  manner,  of  holding  elections 
for  Senators  and  Representatives,  shall  be  prescribed  in 
each  State  by  the  legislature  thereof  :  but  the  Congress 
may  at  any  time,  by  law,  make  or  alter  such  regulations, 
except  as  to  the  places  of  choosing  Senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every 
year,  and  such  meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  law  appoint  a  different  day. 


292 


APPENDIX. 


SECTION  5. 

1.  Each  House  shall  be  the  judge  of  the  elections,  re¬ 
turns,  and  qualifications,  of  its  own  members,  and  a  ma^ 
jority  of  each  shall  constitute  a  quorum  to  do  business  ; 
but  a  smaller  number  may  adjourn  from  day  to  day,  and 
may  be  authorized  to  compel  the  attendance  of  absent 
members,  in  such  manner,  and  under  such  penalties,  as 
each  House  may  provide. 

2.  Each  House  may  determine  the  rules  of  its  pro¬ 
ceedings,  punish  its  members  for  disorderly  behavior, 
and,  with  the  concurrence  of  two  thirds,  expel  a  member. 

3.  Each  House  shall  keep  a  journal  of  its  proceed¬ 
ings,  and,  from  time  to  time,  publish  the  same,  excepting 
such  parts  as  may,  in  their  judgement,  require  secrecy  ; 
and  the  yeas  and  nays  of  the  members  of  either  House, 
on  any  question,  shall,  at  the  desire  of  one  fifth  of  those 
present,  be  entered  on  the  journal. 

4.  Neither  House,  during  the  session  of  Congress, 
shall,  without  the  consent  of  the  other,  adjourn  for  more 
than  three  days,  nor  to  any  other  place  than  that  in  which 
the  two  Houses  shall  be  sitting. 

SECTION  6. 

1.  The  Senators  and  Representatives  shall  receive  a 
compensation  for  their  services,  to  be  ascertained  by  law, 
and  paid  out  of  the  treasury  of  the  United  States.  They 
shall,  in  all  cases,  except  treason,  felony,  and  breach  of 
the  peace,  be  privileged  from  arrest  during  their  attend¬ 
ance  at  the  session  of  their  respective  Houses,  and  in  go¬ 
ing  to,  and  returning  from,  the  same  ;  and  for  any  speech 
or  debate  in  either  House,  they  shall  not  be  questioned 
in  any  other  place. 

2.  No  Senator  or  Representative  shall,  during  the 
time  for  which  he  was  elected,  be  appointed  to  any  civil 
office  under  the  authority  of  the  United  States,  which 
shall  have  been  created,  or  the  emoluments  whereof  shall 
have  been  increased,  during  such  time  ;  and  no  person, 
holding  any  office  under  the  United  States,  shall  be  a 
member  of  either  House  during  his  continuance  in  office. 


CONSTITUTION  OF  THE  UNITED  STATES.  293 


SECTION  7. 

1.  All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives  ;  but  the  Senate  may  propose 
or  concur  with  amendments,  as  on  other  bills. 

2.  Every  bill,  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  become 
a  law,  be  presented  to  the  President  of  the  United 
States  ;  if  he  approve,  he  shall  sign  it,  but  if  not,  he  shall 
return  it,  with  his  objections,  to  that  House  in  which  it 
shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If, 
after  such  reconsideration,  two  thirds  of  that  House  shall 
agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the 
objections,  to  the  other  House,  by  which  it  shall  like¬ 
wise  be  reconsidered,  and,  if  approved  by  two  thirds  of 
that  House,  it  shall  become  a  law.  But  in  all  such  cases 
the  votes  of  both  Houses  shall  be  determined  by  yeas 
and  nays,  and  the  names  of  the  persons  voting  for  and 
against  the  bill  shall  be  entered  on  the  journal  of  each 
House,  respectively.  If  any  bill  shall  not  be  returned  by 
the  President  within  ten  days  (Sundays  excepted)  after 
it  shall  have  been  presented  to  him,  the  same  shall  be  a 
law,  in  like  manner  as  if  he  had  signed  it,  unless  the 
Congress,  by  their  adjournment,  prevent  its  return,  in 
which  case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote,  to  which  the  con¬ 
currence  of  the  Senate  and  House  of  Representatives 
may  be  necessary,  (except  on  a  question  of  adjourn¬ 
ment,)  shall  be  presented  to  the  President  of  the  United 
States  ;  and  before  the  same  shall  take  effect,  shall  be 
approved  by  him,  or,  being  disapproved  by  him,  shall  be 
re-passed  by  two  thirds  of  the  Senate  and  House  of  Re¬ 
presentatives,  according  to  the  rules  and  limitations  pre¬ 
scribed  in  the  case  of  a  bill. 

SECTION  8. 

The  Cong  ress  shall  have  power, 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  ex¬ 
cises,  to  pay  the  debts,  and  provide  for  the  common  de- 

25* 


294 


APPENDIX. 


fence  and  general  welfare,  of  the  United  States  ;  but  all 
duties,  imposts,  and  excises,  shall  be  uniform  throughout 
the  United  States  : 

2.  To  borrow  money  on  the  credit  of  the  United 
States  : 

3.  To  regulate  commerce  with  foreign  nations,  and 
among  the  several  States,  and  with  the  Indian  tribes  : 

4.  To  establish  a  uniform  rule  of  naturalization,  and 
uniform  laws  on  the  subject  of  bankruptcies,  throughout 
the  United  States  : 

5.  To  coin  money,  regulate  the  value  thereof,  and  of 
foreign  coin,  and  fix  the  standard  of  weights  and  meas¬ 
ures  : 

6.  To  provide  for  the  punishment  of  counterfeiting  the 
securities  and  current  coin  of  the  United  States  : 

7.  To  establish  post-offices  and  post-roads  : 

8.  To  promote  the  progress  of  science  and  useful  arts, 
by  securing,  for  limited  times,  to  authors  and  inventors 
the  exclusive  right  to  their  respective  writings  and  dis¬ 
coveries  : 

9.  To  constitute  tribunals  inferior  to  the  Supreme 
Court  : 

10.  To  define  and  punish  piracies  and  felonies,  com¬ 
mitted  on  the  high  seas,  and  offences  against  the  law  of 
nations  : 

11.  To  declare  war,  grant  letters  of  marque  and  re¬ 
prisal,  and  make  rules  concerning  captures  on  land  and 
water  : 

12.  To  raise  and  support  armies  ;  but  no  appropriation 
of  money  to  that  use  shall  be  for  a  longer  term  than  two 
years  : 

13.  To  provide  and  maintain  a  navy  : 

14.  To  make  rules  for  the  government  and  regulation 
of  the  land  and  naval  forces  : 

15.  To  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrections,  and  repel 
invasions  : 

16.  To  provide  for  organizing,  arming,  and  disciplin¬ 
ing,  the  militia,  and  for  governing  such  part  of  them  as 
may  be  employed  in  the  service  of  the  United  States, 


CONSTITUTION  OF  THE  UNITED  STATES.  295 


reserving  to  the  States  respectively,  the  appointment  of 
the  officers,  and  the  authority  of  training  the  militia,  ac 
cording  to  the  discipline  prescribed  by  Congress  : 

17.  To  exercise  exclusive  legislation  in  all  cases 
whatsoever,  over  such  district,  (not  exceeding  ten  miles 
square,)  as  may,  by  cession  of  particular  States,  and  the 
acceptance  of  Congress,  become  the  seat  of  the  govern¬ 
ment  of  the  United  States,  and  to  exercise  like  authority 
over  all  places,  purchased  by  the  consent  of  the  legislature 
of  the  State  in  which  the  same  shall  be,  for  the  erection 
of  forts,  magazines,  arsenals,  dock-yards,  and  other  need¬ 
ful  buildings  : — And 

18.  To  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers, 
and  all  other  powers  vested  by  this  Constitution  in  the 
government  of  the  United  States,  or  in  any  department 
or  officer  thereof. 


SECTION  9. 

1.  The  migration  or  importation  of  such  persons,  as 
any  of  the  States,  now  existing,  shall  think  proper  to  ad¬ 
mit,  shall  not  be  prohibited  by  the  Congress  prior  to  the 
year  one  thousand  eight  hundred  and  eight  ;  but  a  tax  or 
duty  may  be  imposed  on  such  importation,  not  exceeding 
ten  dollars  for  each  person. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when,  in  cases  of  rebellion  or  inva¬ 
sion,  the  public  safety  may  require  it. 

3.  No  bill  of  attainder,  or  ex  post  facto  law,  shall  be 
passed. 

4.  No  capitation  or  other  direct  tax,  shall  be  laid,  un¬ 
less  in  proportion  to  the  census  or  enumeration,  herein 
before  directed  to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State.  No  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue,  to  the  ports  of  one 
State  over  those  of  another  ;  nor  shall  vessels  bound  to, 
or  from,  one  State,  be  obliged  to  enter,  clear,  or  pay 
duties,  in  another. 

6.  No  money  shall  be  drawn  from  the  treasury,  but  in 


296 


APPENDIX. 


consequence  of  appropriations  made  by  law  ;  and  a  regu¬ 
lar  statement  and  account  of  the  receipts  and  expenditures 
of  all  public  money  shall  be  published,  from  time  to  time. 

7.  No  title  of  nobility  shall  be  granted  by  the  United 
States  :  And  no  person,  holding  any  office  of  profit  or 
trust  under  them,  shall,  without  the  consent  of  the  Con¬ 
gress,  accept  of  any  present,  emolument,  office,  or  title, 
of  any  kind  whatever,  from  any  king,  prince,  or  foreign 
state. 

SECTION  10. 

1.  No  State  shall  enter  into  any  treaty,  alliance,  or 
confederation  ;  grant  letters  of  marque  and  reprisal ;  coin 
money  ;  emit  bills  of  credit ;  make  any  thing  but  gold  and 
silver  coin  a  tender  in  payment  of  debts  ;  pass  any  bill  of 
attainder,  ex  post  facto  law,  or  law  impairing  the  obliga¬ 
tion  of  contracts,  or  grant  any  title  of  nobility. 

2.  No  State  shall,  without  the  consent  of  the  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  in¬ 
spection  laws  ;  and  the  net  produce  of  all  duties  and  im¬ 
posts,  laid  by  any  State  on  imports  or  exports,  shall  be 
for  the  use  of  the  treasury  of  the  United  States  ;  and  all 
such  laws  shall  be  subject  to  the  revision  and  control  of 
the  Congress.  No  State  shall,  without  the  consent  of 
Congress,  lay  any  duty  of  tonnage,  keep  troops,  or  ships 
of  war,  in  time  of  peace,  enter  into  any  agreement  or 
compact  with  another  State,  or  with  a  foreign  power,  or 
engage  in  war,  unless  actually  invaded,  or  in  such  immi¬ 
nent  danger,  as  will  not  admit  of  delay. 

ARTICLE  II. 

SECTION  1. 

1.  The  Executive  [ower  shall  be  vested  in  a  Presi¬ 
dent  of  the  United  States  of  America.  He  shall  hold 
his  office  during  the  term  of  four  years,  and  together 
with  the  Vice-President,  chosen  for  the  same  term,  be 
elected  as  follows  : 

2.  Each  State  shall  appoint,  in  such  manner  as  the 


CONSTITUTION  OF  THE  UNITED  STATES.  297 


Legislature  thereof  may  direct,  a  number  of  Electors, 
equal  to  the  whole  number  of  Senators  and  Representa¬ 
tives,  to  which  the  State  may  be  entitled  in  the  Con¬ 
gress  :  but  no  Senator  or  Representative,  or  person  hold¬ 
ing  an  office  of  trust  or  profit,  under  the  United  States, 
shall  be  appointed  an  Elector. 

3.  The  Electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  two  persons,  of  whom  one,  at  least, 
shall  not  be  an  inhabitant  of  the  same  State  with  them¬ 
selves.  And  they  shall  make  a  list  of  all  the  persons 
voted  for,  and  of  the  number  of  votes  for  each  ;  which 
list  they  shall  sign  and  certify,  and  transmit,  sealed,  to  the 
seat  of  the  government  of  the  United  States,  directed  to 
the  President  of  the  Senate.  The  President  of  the  Sen¬ 
ate  shall,  in  the  presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  certificates,  and  the  votes 
shall  then  be  counted.  The  person  having  the  greatest 
number  of  votes  shall  be  the  President,  if  such  number 
be  a  majority  of  the  whole  number  of  Electors  appointed  ; 
and  if  there  be  more  than  one,  who  have  such  majority, 
and  have  an  equal  number  of  votes,  then  the  House  of 
Representatives  shall  immediately  choose,  by  ballot,  one 
of  them  for  President ;  and  if  no  person  have  a  majority, 
then,  from  the  five  highest  on  the  list,  the  said  House 
shall,  in  like  manner,  choose  the  President.  But  in  choos¬ 
ing  the  President,  the  votes  shall  be  taken  by  States,  the 
representation  from  each  State  having  one  vote  ;  a  quo¬ 
rum  for  this  purpose,  shall  consist  of  a  member  or  mem¬ 
bers  from  two  thirds  of  the  States,  and  a  majority  of  all 
the  States  shall  be  necessary  to  a  choice.  In  every  case, 
after  the  choice  of  the  President,  the  person  having  the 
greatest  number  of  votes  of  the  Electors  shall  be  the  Vice- 
President.  But  if  there  should  remain  two  or  more  who 
have  equal  votes,  the  Senate  shall  choose  from  them,  by 
ballot,  the  Vice-President. 

4.  The  Congress  may  determine  the  time  of  choosing 
the  Electors,  and  the  day  on  which  they  shall  give  their 
votes  ;  which  day  shall  be  the  same  throughout  the  Uni¬ 
ted  States. 

5.  No  person,  except  a  natural-born  citizen,  or  a  citi- 


298 


APPENDIX. 


zen  of  the  United  States  at  the  time  of  the  adoption  of 
this  Constitution,  shall  be  eligible  to  the  office  of  Presi¬ 
dent  ;  neither  shall  any  person  be  eligible  to  that  office, 
who  shall  not  have  attained  to  the  age  of  thirty-five  years, 
and  been  fourteen  years  a  resident  within  the  United 
States. 

6.  In  case  of  the  removal  of  the  President  from  office, 
or  of  his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the  same  shall  de¬ 
volve  on  the  Vice-President,  and  the  Congress  may  by 
law  provide  for  the  case  of  removal,  death,  resignation, 
or  inability,  both  of  the  President  and  Vice-President, 
declaring  what  officer  shall  then  act  as  President,  and 
such  officer  shall  act  accordingly,  until  the  disability  be 
removed,  or  a  President  shall  be  elected. 

7.  The  President  shall,  at  stated  times,  receive  for 
his  services,  a  compensation,  which  shall  neither  be  in¬ 
creased  nor  diminished  during  the  period  for  which  he 
shall  have  been  elected,  and  he  shall  not  receive  within 
that  period,  any  other  emolument  from  the  United  States, 
or  any  of  them. 

8.  Before  he  enter  on  the  execution  of  his  office,  he 
shall  take  the  following  oath  or  affirmation  : 

9.  “  I  do  solemnly  swear,  (or  affirm,)  that  I  will  faith¬ 
fully  execute  the  office  of  President  of  the  United  States, 
and  will,  to  the  best  of  my  ability,  preserve,  protect,  and 
defend,  the  Constitution  of  the  United  States.” 

„  SECTION  2. 

1.  The  President  shall  be  commander-in-chief  of  the 
army  and  navy  of  the  United  States,  and  of  the  militia 
of  the  several  States,  when  called  into  the  actual  service 
of  the  United  States  ;  he  may  require  the  opinion,  in 
writing,  of  the  principal  officer  in  each  of  the  executive 
departments,  upon  any  subject  relating  to  the  duties  of 
their  respective  offices,  and  he  shall  have  power  to  grant 
reprieves  and  pardons  for  offences  against  the  United 
States,  except  in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties,  provided  two 


CONSTITUTION  OF  THE  UNITED  STATES. 


299 


thirds  of  the  Senators  present  concur  ;  and  he  shall  nom¬ 
inate,  and  by  and  with  the  advice  and  consent  of  the 
Senate,  shall  appoint  ambassadors,  other  public  ministers, 
and  consuls,  judges  of  the  Supreme  Court,  and  all  other 
officers  of  the  United  States,  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which  shall  be  estab¬ 
lished  bylaw  :  but  the  Congress  may  by  law  vest  the  ap¬ 
pointment  of  such  inferior  officers,  as  they  think  proper, 
in  the  President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  Departments. 

3.  The  President  shall  have  power  to  fill  up  all  va¬ 
cancies  that  may  happen,  during  the  recess  of  the  Sen¬ 
ate,  by  granting  commissions,  which  shall  expire  at  the 
end  of  their  next  session. 

SECTION  3. 

1 .  He  shall,  from  time  to  time,  give  to  the  Congress  in¬ 
formation  of  the  state  of  the  Union,  and  recommend  to 
their  consideration  such  measures  as  he  shall  judge  neces¬ 
sary  and  expedient  ;  he  may,  on  extraordinary  occasions, 
convene  both  Houses,  or  either  of  them,  and  in  case  of 
disagreement  between  them,  with  respect  to  the  time  of 
adjournment,  he  may  adjourn  them  to  such  time  as  he 
shall  think  proper  ;  he  shall  receive  ambassadors  and 
other  public  ministers  ;  he  shall  take  care  that  the  laws 
be  faithfully  executed,  and  shall  commission  all  the  offi¬ 
cers  of  the  United  States. 

SECTION  4. 

1 .  The  President,  Vice-President,  and  all  civil  officers 
of  the  United  States,  shall  be  removed  from  office,  on 
impeachment  for,  and  conviction  of,  treason,  bribery,  or 
other  high  crimes  and  misdemeanors. 

ARTICLE  III. 

SECTION  1. 

1.  The  Judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may,  from  time  to  time,  ordain  and  estab- 


300 


APPENDIX. 


lish.  The  judges,  both  of  the  Supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a  com¬ 
pensation,  which  shall  not  be  diminished  during  their 
continuance  in  office. 

SECTION  2. 

1.  The  Judicial  power  shall  extend  to  all  cases,  in  law 
and  equity,  arising  under  this  Constitution,  the  laws  of 
the  United  States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority  ;  to  all  cases  affecting  am¬ 
bassadors,  other  public  ministers,  and  consuls  ;  to  all  cases 
of  admiralty  and  maritime  jurisdiction  ;  to  controversies 
to  which  the  United  States  shall  be  a  party  ;  to  contro¬ 
versies  between  two  or  more  States,  between  a  State  and 
citizens  of  another  State,  between  citizens  of  different 
States,  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States,  and  between  a  State,  or 
the  citizens  thereof,  and  foreign  states,  citizens,  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls,  and  those  in  which  a  State  shall 
be  a  party,  the  Supreme  Court  shall  have  original  juris¬ 
diction.  In  all  the  other  cases  before  mentioned,  the  Su¬ 
preme  Court  shall  have  appellate  jurisdiction,  both  as  to 
law  and  fact,  with  such  exceptions,  and  under  such  regu¬ 
lations,  as  the  Congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeach¬ 
ment,  shall  be  by  jury  ;  and  such  trial  shall  be  held  in  the 
State  where  the  said  crimes  shall  have  been  committed  ; 
but  when  not  committed  within  any  State,  the  trial  shall  be 
at  such  place,  or  places,  as  the  Congress  may  by  law  have 
directed. 

SECTION  3. 

1.  Treason  against  the  United  States  shall  consist 
only  in  levying  war  against  them,  or  in  adhering  to  their 
enemies,  giving  them  aid  and  comfort.  No  person  shall 
be  convicted  of  treason,  unless  on  the  testimony  of  two 
witnesses  to  the  same  overt  act,  or  on  confession  in  open 
court. 


CONSTITUTION  OF  THE  UNITED  STATES.  301 


2.  The  Congress  shall  have  power  to  declare  the  pun¬ 
ishment  of  treason,  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture,  except  during  the  life 
of  the  person  attainted. 

ARTICLE  IV. 

SECTION  1. 

1.  Full  faith  and  credit  shall  be  given  in  each  State  to 
the  public  acts,  records,  and  judicial  proceedings,  of  every 
other  State.  And  the  Congress  may,  by  general  laws, 
prescribe  the  manner  in  which  such  acts,  records,  and 
proceedings,  shall  be  proved,  and  the  effect  thereof. 

SECTION  2. 

1.  The  citizens  of  each  State  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several  States. 

2.  A  person  charged  in  any  State  with  treason,  fel¬ 
ony,  or  other  crime,  who  shall  flee  from  justice,  and  be 
found  in  another  State,  shall,  on  demand  of  the  executive 
authority  of  the  State  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  State  having  jurisdiction  of  the 
crime. 

3.  No  person  held  to  service  or  labor  in  one  State, 
under  the  laws  thereof,  escaping  into  another,  shall,  in 
consequence  of  any  law  or  regulation  therein,  be  dis¬ 
charged  from  such  service  or  labor,  but  shall  be  delivered 
up  on  claim  of  the  party  to  whom  such  service  or  labor 
may  be  due. 

SECTION  3. 

1.  New  States  may  be  admitted  by  the  Congress  into 
this  Union  ;  but  no  new  State  shall  be  formed,  or  erected, 
within  the  jurisdiction  of  any  other  State  ;  nor  any  State 
be  formed,  by  the  junction  of  two  or  more  States,  or  parts 
ol  States,  without  the  consent  of  the  legislatures  of  the 
States  concerned,  as  well  as  of  the  Congress. 

2.  The  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the  ter¬ 
ritory,  or  other  property,  belonging  to  the  United  States  ; 
and  nothing  in  this  Constitution  shall  be  so  construed  as 

26  xiii. 


302 


APPENDIX. 


to  prejudice  any  claims  of  the  United  States,  or  of  any 
particular  State. 

SECTION  4. 

1.  The  United  States  shall  guaranty  to  every  State 
in  this  Union  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion  ;  and,  on  application 
of  the  legislature,  or  of  the  executive,  (when  the  legisla¬ 
ture  cannot  be  convened,)  against  domestic  violence. 

ARTICLE  V. 

1.  The  Congress,  whenever  two  thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  amendments  to  this 
Constitution,  or,  on  the  application  of  the  legislatures  of 
two  thirds  of  the  several  States,  shall  call  a  convention 
for  proposing  amendments,  which,  in  either  case,  shall  be 
valid  to  all  intents  and  purposes,  as  part  of  this  Constitu¬ 
tion,  when  ratified  by  the  legislatures  of  three  fourths  of 
the  several  States,  or  by  conventions  in  three  fourths  there¬ 
of,  as  the  one  or  the  other  mode  of  ratification  may  be 
proposed  by  the  Congress  :  Provided,  that  no  amend¬ 
ment,  which  may  be  made  prior  to  the  year  one  thousand 
eight  hundred  and  eight,  shall,  in  any  manner,  affect  the 
first  and  fourth  clauses  in  the  ninth  section  of  the  first 
article  ;  and  that  no  State,  without  its  consent,  shall  be 
deprived  of  its  equal  suffrage  in  the  Senate. 

ARTICLE  YI. 

1.  All  debts  contracted,  and  engagements  entered  into, 
before  the  adoption  of  this  Constitution,  shall  be  as  valid 
against  the  United  States,  under  this  Constitution,  as  un¬ 
der  the  Confederation. 

2.  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  trea¬ 
ties  made,  or  which  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  land  ; 
and  the  judges  in  every  State  shall  be  bound  thereby,  any 
thing  in  the  Constitution  or  law's  of  any  State  to  the  con¬ 
trary  notwithstanding. 


AMENDMENTS  OF  THE  CONSTITUTION. 


303 


3.  The  Senators  and  Representatives  before  mention¬ 
ed,  and  the  members  of  the  several  State  legislatures,  and 
all  executive  and  judicial  officers,  both  of  the  United 
States,  and  of  the  several  States,  shall  be  bound,  by  oath 
or  affirmation,  to  support  this  Constitution  ;  but  no  re¬ 
ligious  test  shall  ever  be  required  as  a  qualification  to  any 
office  or  public  trust,  under  the  United  States. 

ARTICLE  VII. 

1.  The  ratification  of  the  Conventions  of  nine  States 
shall  be  sufficient  for  the  establishment  of  this  Constitution 
between  the  States  so  ratifying  the  same. 


AMENDMENTS  TO  THE  CONSTITUTION. 

ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establish¬ 
ment  of  religion,  or  prohibiting  the  free  exercise  thereof; 
or  abridging  the  freedom  of  speech,  or  of  the  press  ;  or 
the  right  of  the  people  peaceably  to  assemble,  and  to  pe¬ 
tition  the  government  for  a  redress  of  grievances. 

ARTICLE  II. 

A  well  regulated  militia  being  necessary  to  the  security 
of  a  free  State,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed. 

ARTICLE  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house,  without  the  consent  of  the  owner  ;  nor,  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law. 

ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 


304 


APPENDIX^ 


and  seizures,  shall  not  be  violated  ;  and  no  warrants  shall 
issue,  but  upon  probable  cause,  supported  by  oath  or 
affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous,  crime,  unless  on  a  presentment  or  in¬ 
dictment  of  a  grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia,  when  in  actual  ser¬ 
vice,  in  time  of  war,  or  public  danger  ;  nor  shall  any  per¬ 
son  be  subject,  for  the  same  offence,  to  be  twice  put  in 
jeopardy  of  life  or  limb  ;  nor  shall  be  compelled,  in  any 
criminal  case,  to  be  a  witness  against  himself,  nor  be  de¬ 
prived  of  life,  liberty,  or  property,  without  due  process 
of  law  ;  nor  shall  private  property  be  taken  for  public  use, 
without  just  compensation. 

ARTICLE  VI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial  jury 
of  the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously  as¬ 
certained  by  law  ;  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation  ;  to  be  confronted  with  the  wit¬ 
nesses  against  him  ;  to  have  compulsory  process  for  ob¬ 
taining  witnesses  in  his  favor  ;  and  to  have  the  assistance 
of  counsel  for  his  defence. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  contro¬ 
versy  shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved  ;  and  no  fact,  tried  by  a  jury,  shall 
be  otherwise  re-examined  in  any  court  of  the  United 
States,  than  according  to  the  rules  of  the  common  law. 

ARTICLE  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  inflicted. 


AMENDMENTS  TO  THE  CONSTITUTION. 


305 


ARTICLE  IX. 

The  enumeration  in  the  Constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others  retain¬ 
ed  by  the  people. 

ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re¬ 
served  to  the  States  respectively,  or  to  the  people. 

ARTICLE  XI. 

The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com¬ 
menced  or  prosecuted  against  one  of  the  United  States 
by  citizens  of  another  State,  or  by  citizens  or  subjects  of 
any  foreign  State. 

ARTICLE  XII. 

1.  The  Electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  President  and  Vice-President,  one 
of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves  ;  they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President ;  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice-President,  and  of 
the  number  of  votes  for  each,  which  lists  they  shall  sign, 
and  certify,  and  transmit,  sealed,  to  the  seat  of  the  govern¬ 
ment  of  the  United  States,  directed  to  the  President  of 
the  Senate  ;  the  President  of  the  Senate  shall,  in  the  pres¬ 
ence  of  the  Senate  and  House  of  Representatives,  open  all 
the  certificates,  and  the  votes  shall  then  be  counted  ;  the 
person  having  the  greatest  number  of  votes  for  President 
shall  be  the  President,  if  such  number  be  a  majority  of 
the  whole  number  of  Electors  appointed  ;  and  if  no  per¬ 
son  have  such  majority,  then,  from  the  persons  having  the 
highest  numbers,  not  exceeding  three,  on  the  list  of  those 
voted  for  as  President,  the  House  of  Representatives 

26* 


306 


APPENDIX. 


shall  choose  immediately,  by  ballot,  the  President.  But 
in  choosing  the  President,  the  votes  shall  be  taken  by 
States,  the  representation  from  each  State  having  one 
vote  ;  a  quorum  for  this  purpose  shall  consist  of  a  mem¬ 
ber  or  members  from  two  thirds  of  the  States,  and  a  ma¬ 
jority  of  all  the  States  shall  be  necessary  to  a  choice. 
And  if  the  House  of  Representatives  shall  not  choose 
a  President,  whenever,  the  right  of  choice  shall  devolve 
upon  them,  before  the  fourth  day  of  March  next  follow¬ 
ing,  then  the  Vice-President  shall  act  as  President,  as  in 
case  of  the  death,  or  other  constitutional  disability,  of  the 
President. 

2.  The  person  having  the  greatest  number  of  votes 
as  Vice-President  shall  be  the  Vice-President,  if  such 
number  be  a  majority  of  the  whole  number  of  electors  ap¬ 
pointed  ;  and  if  no  person  have  a  majority,  then,  from  the 
two  highest  numbers  on  the  list,  the  Senate  shall  choose 
the  Vice-President  ;  a  quorum  for  the  purpose  shall  con¬ 
sist  of  two  thirds  of  the  whole  number  of  Senators  ;  a  ma¬ 
jority  of  the  whole  number  shall  be  necessary  to  a  choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office 
of  President,  shall  be  eligible  to  that  of  Vice-President  of 
the  United  States. 


WASHINGTON’S  FAREWELL  ADDRESS 
TO  THE  PEOPLE  OF  THE  UNITED  STATES. 

SEPTEMBER  17,  1796. 

Friends  and  Fellow  Citizens, 

The  period  for  a  new  election  of  a  citizen  to  adminis¬ 
ter  the  executive  government  of  the  United  States  being 
not  far  distant,  and  the  time  actually  arrived,  when  your 
thoughts  must  be  employed  in  designating  the  person  who 
is  to  be  clothed  with  that  important  trust,  it  appears  to  me 
proper,  especially  as  it  may  conduce  to  a  more  distinct 
expression  of  the  public  voice,  that  I  should  now  apprise 


307 


Washington’s  farewell  address. 

you  of  the  resolution  I  have  formed,  to  decline  being  con¬ 
sidered  among  the  number  of  those  out  of  whom  a  choice 
is  to  be  made. 

I  beg  you,  at  the  same  time,  to  do  me  the  justice  to  be 
assured,  that  this  resolution  has  not  been  taken,  without  a 
strict  regard  to  all  the  considerations  appertaining  to  the 
relation  which  binds  a  dutiful  citizen  to  his  country ;  and 
that,  in  withdrawing  the  tender  of  service,  which  silence, 
in  my  situation,  might  imply,  I  am  influenced  by  no  dim¬ 
inution  of  zeal  for  your  future  interest ;  no  deficiency  of 
grateful  respect  for  your  past  kindness  ;  but  am  supported 
by  a  full  conviction  that  the  step  is  compatible  with  both. 

The  acceptance  of,  and  continuance  hitherto  in,  the 
office  to  which  your  suffrages  have  twice  called  me,  have 
been  a  uniform  sacrifice  of  inclination  to  the  opinion  of 
duty,  and  to  a  deference  for  what  appeared  to  be  your 
desire.  I  constantly  hoped,  that  it  would  have  been  much 
earlier  in  my  power,  consistently  with  motives  which  I 
was  not  at  liberty  to  disregard,  to  return  to  that  retirement 
from  which  I  had  been  reluctantly  drawn.  The  strength 
of  my  inclination  to  do  this,  previous  to  the  last  election, 
had  even  led  to  the  preparation  of  an  address,  to  declare 
it  to  you  ;  but  mature  reflection  on  the  then  perplexed 
and  critical  posture  of  our  affairs  with  foreign  nations,  and 
the  unanimous  advice  of  persons  entitled  to  my  confidence, 
impelled  me  to  abandon  the  idea. 

I  rejoice  that  the  state  of  your  concerns,  external  as 
well  as  internal,  no  longer  renders  the  pursuit  of  inclina¬ 
tion  incompatible  with  the  sentiment  of  duty  or  propriety  ; 
and  am  persuaded,  whatever  partiality  may  be  retained 
for  my  services,  that,  in  the  present  circumstances  of  our 
country,  you  will  not  disapprove  my  determination  to  re¬ 
tire. 

The  impressions,  with  which  I  first  undertook  the  ar¬ 
duous  trust,  were  explained  on  the  proper  occasion.  In 
the  discharge  of  this  trust,  I  will  only  say,  that  I  have, 
with  good  intentions,  contributed  towards  the  organization 
and  administration  of  the  government,  the  best  exertions 
of  which  a  very  fallible  judgement  was  capable.  Not  un¬ 
conscious,  in  the  outset,  of  the  inferiority  of  my  qualifica- 


308 


APPENDIX. 


tions,  experience  in  my  own  eyes,  perhaps  still  more  in 
the  eyes  of  others,  has  strengthened  the  motives  to  diffi¬ 
dence  of  myself;  and,  every  day,  the  increasing  weight  of 
years  admonishes  me,  more  and  more,  that  the  shade  of 
retirement  is  as  necessary  to  me,  as  it  will  be  welcome. 
Satisfied  that,  if  any  circumstances  have  given  peculiar 
value  to  my  services,  they  were  temporary,  I  have  the 
consolation  to  believe,  that,  while  choice  and  prudence 
invite  me  to  quit  the  political  scene,  patriotism  does  not 
forbid  it. 

In  looking  forward  to  the  moment  which  is  intended  to 
terminate  the  career  of  my  public  life,  my  feelings  do  not 
permit  me  to  suspend  the  deep  acknowledgment  of  that 
debt  of  gratitude  which  1  owe  to  my  beloved  country,  for 
the  many  honors  it  has  conferred  upon  me  ;  still  more  for 
the  steadfast  confidence  with  which  it  has  supported  me  ; 
and  for  the  opportunities  I  have  thence  enjoyed,  of  man¬ 
ifesting  my  inviolable  attachment,  by  services  faithful  and 
persevering,  though  in  usefulness  unequal  to  my  zeal.  If 
benefits  have  resulted  to  our  country  from  these  services, 
let  it  always  be  remembered  to  your  praise,  and  as  an  in¬ 
structive  example  in  our  annals,  that,  under  circumstances 
in  which  the  passions,  agitated  in  every  direction,  were 
liable  to  mislead,  amidst  appearances  sometimes  dubious, 
vicissitudes  of  fortune  often  discouraging,  in  situations  in 
which,  not  unfrequently,  want  of  success  has  countenanced 
the  spirit  of  criticism,  the  constancy  of  your  support  was 
the  essential  prop  of  the  efforts,  and  a  guarantee  of  the 
plans,  by  which  they  were  effected.  Profoundly  pene¬ 
trated  with  this  idea,  I  shall  carry  it  with  me  to  my  grave, 
as  a  strong  incitement  to  unceasing  vows,  that  Heaven 
may  continue  to  you  the  choicest  tokens  of  its  benefi¬ 
cence  ;  that  your  union  and  brotherly  affection  may  he 
perpetual  ;  that  the  free  Constitution,  which  is  the  work 
of  your  hands,  may  be  sacredly  maintained  ;  that  its  ad¬ 
ministration,  in  every  department,  may  be  stamped  with 
wisdom  and  virtue  ;  that,  in  fine,  the  happiness  of  the 
people  of  these  States,  under  the  auspices  of  liberty,  may 
be  made  complete,  by  so  careful  a  preservation  and  so 
prudent  a  use  of  this  blessing,  as  will  acquire  to  them  the 


309 


Washington’s  farewell  address. 

glory  of  recommending  it  to  the  applause,  the  affection, 
and  adoption,  of  every  nation  which  is  yet  a  stranger  to  it. 

Here,  perhaps,  I  ought  to  stop  ;  but  a  solicitude  for 
your  welfare,  which  cannot  end  but  with  my  life,  and  the 
apprehension  of  danger,  natural  to  that  solicitude,  urge  me, 
on  an  occasion  like  the  present,  to  offer  to  your  solemn 
contemplation,  and  to  recommend  to  your  frequent  re¬ 
view,  some  sentiments,  which  are  the  result  of  much 
reflection  ;  of  no  inconsiderable  observation  ;  and  which 
appear  to  me  all  important  to  the  permanency  of  your 
felicity,  as  a  people.  These  will  be  offered  to  you  with 
the  more  freedom,  as  you  can  only  see  in  them  the  disin¬ 
terested  warnings  of  a  parting  friend,  who  can  possibly 
have  no  personal  motive  to  bias  his  counsel  ;  nor  can  I 
forget,  as  an  encouragement  to  it,  your  indulgent  reception 
of  my  sentiments  on  a  former,  and  not  dissimilar,  occasion. 

Interwoven  as  is  the  love  of  liberty  with  every  ligament 
of  your  hearts,  no  recommendation  of  mine  is  necessary 
to  fortify,  or  confirm,  the  attachment. 

The  unity  of  government,  which  constitutes  you  one 
people,  is  also  now  dear  to  you.  It  is  justly  so  ;  for  it 
is  a  main  pillar  in  the  edifice  of  your  real  independence  ; 
the  support  of  your  tranquillity  at  home,  your  peace 
abroad  ;  of  your  safety  ;  of  your  prosperity  ;  of  that  very 
liberty  which  you  so  highly  prize.  But,  as  it  is  easy  to 
foresee,  that,  from  different  causes,  and  from  different 
quarters,  much  pains  will  be  taken,  many  artifices  employ¬ 
ed,  to  weaken,  in  your  minds,  the  conviction  of  this  truth  ; 
as  this  is  the  point  in  your  political  fortress,  against  which 
the  batteries  of  internal  and  external  enemies  will  be  most 
constantly  and  actively  (though  often  covertly  and  insid- 
uously)  directed,  it  is  of  infinite  moment  that  you  should 
properly  estimate  the  immense  value  of  your  National 
Union,  to  your  collective  and  individual  happiness  ;  that 
you  should  cherish  a  cordial,  habitual,  and  immovable, 
attachment  to  it  ;  accustoming  yourselves  to  think  and 
speak  of  it  as  of  the  palladium  of  your  political  safety  and 
prosperity ;  watching  for  its  preservation  with  jealous 
anxiety  ;  discountenancing  whatever  may  suggest  even  a 
suspicion  that  it  can,  in  any  event,  be  abandoned  ;  and 


310 


APPENDIX. 


indignantly  frowning  upon  the  first  dawning  of  every  at¬ 
tempt  to  alienate  any  portion  of  our  country  from  the  rest, 
or  to  enfeeble  the  sacred  ties  which  now  link  together  the 
various  parts. 

For  this  you  have  every  inducement  of  sympathy  and 
interest.  Citizens,  by  birth  or  choice,  of  a  common  coun¬ 
try,  that  country  has  a  right  to  concentrate  your  affections. 
The  name  of  American,  which  belongs  to  you  in  your 
National  capacity,  must  always  exalt  the  just  pride  of  pa¬ 
triotism,  more  than  any  appellation  derived  from  local  dis¬ 
criminations.  With  slight  shades  of  difference,  you  have 
the  same  religion,  manners,  habits,  and  political  princi¬ 
ples.  You  have,  in  a  common  cause,  fought  and  triumphed 
together  :  the  independence  and  liberty  you  possess  are 
the  work  of  joint  councils  and  joint  efforts,  of  common 
dangers,  sufferings,  and  successes. 

But  these  considerations,  however  powerfully  they  ad¬ 
dress  themselves  to  your  sensibility,  are  greatly  outweighed 
by  those  which  apply  more  immediately  to  your  interest. 
Here  every  portion  of  our  country  finds  the  most  comman¬ 
ding  motives  for  carefully  guarding  and  preserving  the  union 
of  the  whole. 

The  North ,  in  an  unrestrained  intercourse  with  the 
South ,  protected  by  the  equal  laws  of  a  common  govern¬ 
ment,  finds,  in  the  productions  of  the  latter,  great  addi¬ 
tional  resources  of  maritime  and  commercial  enterprise, 
and  precious  materials  of  manufacturing  industry.  The 
South ,  in  the  same  intercourse,  benefiting  by  the  agency 
of  the  North ,  sees  its  agriculture  grow,  and  its  commerce 
expand.  Turning  partly  into  its  own  channels  the  seamen 
of  the  North,  it  finds  its  particular  navigation  invigorated  : 
and,  while  it  contributes,  in  different  ways,  to  nourish  and 
increase  the  general  mass  of  the  National  navigation,  it 
looks  forward  to  the  protection  of  a  maritime  strength,  to 
which  itself  is  unequally  adapted.  The  East,  in  like  in¬ 
tercourse  with  the  West,  already  finds,  and  in  the  pro¬ 
gressive  improvement  of  interior  communications,  by  land 
and  water,  will  more  and  more  find,  a  valuable  vent  for 
the  commodities  which  it  brings  from  abroad,  or  manu¬ 
factures  at  home.  The  West  derives  from  the  East  sup- 


Washington’s  farewell  address. 


311 


plies  requisite  to  its  growth  and  comfort ;  and,  what  is, 
perhaps,  of  still  greater  consequence,  it  must,  of  necessity, 
owe  the  secure  enjoyment  of  indispensable  outlets  for  its 
own  productions,  to  the  weight,  influence,  and  the  future 
maritime  strength  of  the  Atlantic  side  of  the  Union,  di¬ 
rected  by  an  indissoluble  community  of  interest  as  one  na¬ 
tion.  Any  other  tenure  by  which  the  West  can  hold  this 
essential  advantage,  whether  derived  from  its  own  separ¬ 
ate  strength,  or  from  an  apostate  and  unnatural  connexion 
with  any  foreign  power,  must  be  intrinsically  precarious. 

While,  then,  every  part  of  our  country  thus  feels  an 
immediate  and  particular  interest  in  union,  all  the  parts 
combined  cannot  fail  to  find,  in  the  united  mass  of  means 
and  efforts,  greater  strength,  greater  resource,  proportion- 
ably  greater  security  from  external  danger,  a  less  frequent 
interruption  of  their  peace  by  foreign  nations  ;  and,  what 
is  of  inestimable  value,  they  must  derive  from  union  an 
exemption  from  those  broils  and  wars  between  themselves, 
which  so  frequently  afflict  neighboring  countries,  not  tied 
together  by  the  same  governments  ;  which  their  own  ri- 
valships  alone  would  be  sufficient  to  produce,  but  which 
opposite  foreign  alliances,  attachments,  and  intrigues, 
would  stimulate  and  embitter.  Hence,  likewise,  they 
will  avoid  the  necessity  of  those  overgrown  military  es¬ 
tablishments,  which,  under  any  form  of  government,  are 
inauspicious  to  liberty,  and  which  are  to  be  regarded  as 
particularly  hostile  to  republican  liberty  ;  in  this  sense  it 
is,  that  your  union  ought  to  be  considered  as  a  main  prop 
of  your  liberty,  and  that  the  love  of  the  one  ought  to  en¬ 
dear  to  you  the  preservation  of  the  other. 

These  considerations  speak  a  persuasive  language  to 
every  reflecting  and  virtuous  mind,  and  exhibit  the  con¬ 
tinuance  of  the  Union  as  a  primary  object  of  patriotic  de¬ 
sire.  Is  there  a  doubt,  whether  a  common  government 
can  embrace  so  large  a  sphere  ?  Let  experience  solve  it. 
To  listen  to  mere  speculation,  in  such  a  case,  were  crim¬ 
inal.  We  are  authorized  to  hope,  that  a  proper  organi¬ 
zation  of  the  wrhole,  with  the  auxiliary  agency  of  govern¬ 
ments  for  the  respective  subdivisions,  will  afford  a  happy 
issue  to  the  experiment.  It  is  well  worth  a  fair  and  full 


312 


APPENDIX. 


experiment.  With  such  powerful  and  obvious  motives 
to  union,  affecting  all  parts  of  our  country,  while  experi¬ 
ence  shall  not  have  demonstrated  its  impracticability,  there 
will  always  be  reason  to  distrust  the  patriotism  of  those, 
who,  in  any  quarter,  may  endeavor  to  weaken  its  bands. 

In  contemplating  the  causes,  which  may  disturb  our 
union,  it  occurs,  as  matter  of  serious  concern,  that  any 
ground  should  have  been  furnished  for  characterizing 
parties  by  geographical  discriminations,  Northern  and 
Southern ,  Atlantic  and  Western  ;  whence  designing  men 
may  endeavor  to  excite  a  belief,  that  there  is  a  real  differ¬ 
ence  of  local  interests  and  views.  One  of  the  expedients  of 
party  to  acquire  influence,  within  particular  districts,  is,  to 
misrepresent  the  opinions  and  aims  of  other  districts.  You 
cannot  shield  yourselves  too  much  against  the  jealousies 
and  heart-burnings,  which  spring  from  these  misrepresen¬ 
tations  ;  they  tend  to  render  alien  to  each  other  those  who 
ought  to  be  bound  together  by  fraternal  affection.  The 
inhabitants  of  our  western  country  have  lately  had  a  use¬ 
ful  lesson  on  this  head  ;  they  have  seen,  in  the  negotiation 
by  the  Executive,  and  in  the  unanimous  ratification  by  the 
Senate,  of  the  treaty  with  Spain,  and  in  the  universal  sat¬ 
isfaction  at  that  event,  throughout  the  United  States,  a 
decisive  proof  how  unfounded  were  the  suspicions  prop¬ 
agated  among  them,  of  a  policy  in  the  General  Govern¬ 
ment,  and  in  the  Atlantic  States,  unfriendly  to  their  inter¬ 
ests,  in  regard  to  the  Mississippi  ;  they  have  been  wit¬ 
nesses  to  the  formation  of  two  treaties,  that  with  Great 
Britain,  and  that  with  Spain,  which  secure  to  them  every 
thing  they  could  desire,  in  respect  to  our  foreign  relations, 
towards  confirming  their  prosperity.  Will  it  not  be  their 
wisdom  to  rely,  for  the  preservation  of  these  advantages, 
on  the  Union  by  which  they  were  procured  ?  Will  they 
not  henceforth  be  deaf  to  those  advisers,  if  such  there 
are,  who  would  sever  them  from  their  brethren,  and  con¬ 
nect  them  with  aliens  ? 

To  the  efficacy  and  permanency  of  your  Union,  a  gov¬ 
ernment  for  the  whole  is  indispensable.  No  alliances, 
however  strict,  between  the  parts,  can  be  an  adequate 
substitute  ;  they  must  inevitably  experience  the  infrac- 


Washington’s  farewell  address. 


313 


tions  and  interruptions  which  all  alliances,  in  all  times,  have 
experienced.  Sensible  of  this  momentous  truth,  you  have 
improved  upon  your  first  essay,  by  the  adoption  of  a  Con¬ 
stitution  of  Government  better  calculated  than  your  former, 
for  an  intimate  Union,  and  for  the  efficacious  management 
of  your  common  concerns.  This  Government,  the  off¬ 
spring  of  our  own  choice,  uninfluenced  and  unawed, 
adopted  upon  full  investigation  and  mature  deliberation, 
completely  free  in  its  principles,  in  the  distribution  of  its 
powers  uniting  security  with  energy,  and  containing  with¬ 
in  itself  a  provision  for  its  own  amendment,  has  a  just 
claim  to  your  confidence  and  your  support.  Respect  for 
its  authority,  compliance  with  its  laws,  acquiescence  in 
its  measures,  are  duties  enjoined  by  the  fundamental  max¬ 
ims  of  true  liberty.  The  basis  of  our  political  systems 
is,  the  right  of  the  people  to  make  and  to  alter  their  Con¬ 
stitutions  of  Government.  But  the  Constitution  which  at 
any  time  exists,  till  changed  by  an  explicit  and  authentic 
act  of  the  whole  people,  is  sacredly  obligatory  upon  all. 
The  very  idea  of  the  power  and  the  right  of  the  people 
to  establish  Government,  pre-supposes  the  duty  of  every 
individual  to  obey  the  established  Government. 

All  obstructions  to  the  execution  of  the  Laws,  all  com¬ 
binations  and  associations,  under  whatever  plausible  char¬ 
acter,  with  the  real  design  to  direct,  control,  counteract, 
or  awe,  the  regular  deliberation  and  action  of  the  consti¬ 
tuted  authorities,  are  destructive  of  this  fundamental  prin¬ 
ciple,  and  of  fatal  tendency.  They  serve  to  organize 
faction,  to  give  it  an  artificial  and  extraordinary  force  ;  to 
put,  in  the  place  of  the  delegated  will  of  the  nation,  the 
will  of  a  party,  often  a  small  but  artful  and  enterprising 
minority  of  the  community  ;  and,  according  to  the  al¬ 
ternate  triumphs  of  different  parties,  to  make  the  public 
administration  the  mirror  of  the  ill-concerted  and  incon¬ 
gruous  projects  of  faction,  rather  than  the  organ  of  con¬ 
sistent  and  wholesome  plans,  digested  by  common  coun¬ 
cils,  and  modified  by  mutual  interests. 

However  combinations  or  associations  of  the  above 
description  may  now  and  then  answer  popular  ends,  they 
are  likely,  in  the  course  of  time  and  things,  to  become 

27  xiii. 


314 


APPENDIX. 


potent  engines,  by  which  cunning,  ambitious,  and  unprin¬ 
cipled,  men  will  be  enabled  to  subvert  the  power  of  the 
people,  and  to  usurp  for  themselves  the  reins  of  govern¬ 
ment  ;  destroying,  afterwards,  the  very  engines,  which  had 
lifted  them  to  unjust  dominion. 

Towards  the  preservation  of  your  government,  and  the 
permanency  of  your  present  happy  state,  it  is  requisite, 
not  only  that  you  steadily  discountenance  irregular  opposi¬ 
tions  to  its  acknowledged  authority,  but  also  that  you  resist 
with  care  the  spirit  of  innovation  upon  its  principles,  how¬ 
ever  specious  the  pretexts.  One  method  of  assault  may 
be  to  effect,  in  the  forms  of  the  Constitution,  alterations 
which  will  impair  the  energy  of  the  system,  and  thus  to 
undermine  what  cannot  be  directly  overthrown.  In  all 
the  changes  to  which  you  may  be  invited,  remember  that 
time  and  habit  are  at  least  as  necessary  to  fix  the  true 
character  of  governments,  as  of  other  human  institutions  ; 
that  experience  is  the  surest  standard,  by  which  to  test 
the  real  tendency  of  the  existing  Constitution  of  a  country  ; 
that  facility  in  changes,  upon  the  credit  of  mere  hypothe¬ 
sis  and  opinion,  exposes  to  perpetual  change,  from  the 
endless  variety  of  hypothesis  and  opinion  ;  and  remem¬ 
ber,  especially,  that,  for  the  efficient  management  of  your 
common  interests,  in  a  country  so  extensive  as  ours,  a 
government  of  as  much  vigor  as  is  consistent  with  the 
perfect  security  of  liberty  is  indispensable.  Liberty  it¬ 
self  will  find  in  such  a  government,  with  powers  properly 
distributed  and  adjusted,  its  surest  guardian.  It  is,  in¬ 
deed,  little  else  than  a  name,  where  the  government  is  too 
feeble  to  withstand  the  enterprises  of  faction,  to  confine 
each  member  of  the  society  within  the  limits  prescribed 
by  the  laws,  and  to  maintain  all  in  the  secure  and  tranquil 
enjoyment  of  the  rights  of  person  and  property. 

I  have  already  intimated  to  you  the  danger  of  parties  in 
the  state,  with  particular  reference  to  the  founding  of  them 
on  geographical  discriminations.  Let  me  now  take  a 
more  comprehensive  view,  and  warn  you  in  the  most  sol¬ 
emn  manner  against  the  baneful  effects  of  the  spirit  of 
partjr,  generally. 

This  spirit,  unfortunately,  is  inseparable  from  our  na- 


Washington’s  farewell  address.  315 

ture,  having  its  root  in  the  strongest  passions  of  the  hu¬ 
man  mind.  It  exists,  under  different  shapes,  in  all  govern¬ 
ments,  more  or  less  stifled,  controlled,  or  repressed  ;  but, 
in  those  of  the  popular  form,  it  is  seen  in  its  greatest 
rankness,  and  is  truly  their  worst  enemy. 

The  alternate  domination  of  one  faction  over  another, 
sharpened  by  the  spirit  of  revenge,  natural  to  party  dis¬ 
sension,  which  in  different  ages  and  countries  has  perpe¬ 
trated  the  most  horrid  enormities,  is  itself  a  frightful  des¬ 
potism.  But  this  leads  at  length  to  a  more  formal  and 
permanent  despotism.  The  disorders  and  miseries,  which 
result,  gradually  incline  the  minds  of  men  to  seek  securi¬ 
ty  and  repose  in  the  absolute  power  of  an  individual  ;  and 
sooner  or  later  the  chief  of  some  prevailing  faction,  more 
able  or  more  fortunate  than  his  competitors,  turns  this 
disposition  to  the  purposes  of  his  own  elevation,  on  the 
ruins  of  Public  Liberty. 

Without  looking  forward  to  an  extremity  of  this  kind, 
(which  nevertheless  ought  not  to  be  entirely  out  of  sight,) 
the  common  and  continual  mischiefs  of  the  spirit  of  party 
are  sufficient  to  make  it  the  interest  and  duty  of  a  wise 
people  to  discourage  and  restrain  it. 

It  serves  always  to  distract  the  Public  Councils,  and 
enfeeble  the  Public  Administration.  It  agitates  the  Com¬ 
munity  with  ill-founded  jealousies  and  false  alarms  ;  kin¬ 
dles  the  animosity  of  one  part  against  another  ;  foments, 
occasionally,  riot  and  insurrection.  It  opens  the  door  to 
foreign  influence  and  corruption,  which  find  a  facilitated 
access  to  the  government  itself  through  the  channels  of 
party  passions.  Thus  the  policy  and  the  will  of  one 
country  are  subjected  to  the  policy  and  will  of  another. 

There  is  an  opinion,  that  parties  in  free  countries  are 
useful  checks  upon  the  administration  of  the  Government, 
and  serve  to  keep  alive  the  spirit  of  Liberty.  This, 
within  certain  limits,  is  probably  true  ;  and  in  Govern¬ 
ments  of  a  Monarchical  cast,  Patriotism  may  look  with 
indulgence,  if  not  with  favor,  upon  the  spirit  of  party. 
But  in  those  of  the  popular  character,  in  Governments 
purely  elective,  it  is  a  spirit  not  to  be  encouraged.  From 
their  natural  tendency,  it  is  certain  there  will  always  be 


316 


APPENDIX. 


enough  of  that  spirit  for  every  salutary  purpose.  And, 
there  being  constant  danger  of  excess,  the  effort  ought  to 
be,  by  force  of  public  opinion,  to  mitigate  and  assuage  it. 
A  fire  not  to  be  quenched,  it  demands  a  uniform  vigilance 
to  prevent  its  bursting  into  a  flame,  lest,  instead  of  warm¬ 
ing,  it  should  consume. 

It  is  important,  likewise,  that  the  habits  of  thinking  in 
a  free  country  should  inspire  caution,  in  those  intrusted 
with  its  administration,  to  confine  themselves  within  their 
respective  constitutional  spheres,  avoiding  in  the  exercise 
of  the  powers  of  one  department  to  encroach  upon  anoth¬ 
er.  The  spirit  of  encroachment  tends  to  consolidate  the 
powers  of  all  the  departments  in  one,  and  thus  to  create, 
whatever  the  form  of  government,  a  real  despotism.  A 
just  estimate  of  that  love  of  power,  and  proneness  to 
abuse  it,  which  predominates  in  the  human  heart,  is  suffi¬ 
cient  to  satisfy  us  of  the  truth  of  this  position.  The  ne¬ 
cessity  of  reciprocal  checks  in  the  exercise  of  political 
power,  by  dividing  and  distributing  it  into  different  de¬ 
positories,  and  constituting  each  the  Guardian  of  the  Pub¬ 
lic  Weal  against  invasions  by  the  others,  has  been  evinced 
by  experiments  ancient  and  modern  ;  some  of  them  in  our 
country  and  under  our  own  eyes.  To  preserve  them 
must  be  as  necessary  as  to  institute  them.  If,  in  the 
opinion  of  the  people,  the  distribution  or  modification  of 
the  constitutional  powers  be,  in  any  particular,  wrong,  let 
it  be  corrected  by  an  amendment,  in  the  way  which  the 
Constitution  designates.  But  let  there  be  no  change  by 
usurpation  ;  for,  though  this,  in  one  instance,  may  be 
the  instrument  of  good,  it  is  the  customary  weapon  by 
which  free  governments  are  destroyed.  The  precedent 
must  always  greatly  overbalance,  in  permanent  evil,  any 
partial  or  transient  benefit,  which  the  use  can  at  any  time 
yield. 

Of  all  die  dispositions  and  habits,  which  lead  to  polit¬ 
ical  prosperity,  Religion  and  Morality  are  indispensable 
supports.  In  vain  would  that  man  claim  the  tribute  of 
Patriotism,  who  should  labor  to  subvert  these  great  pillars 
of  human  happiness,  these  firmest  props  of  the  duties  of 
Men  and  Citizens.  The  mere  Politician,  equally  with 


Washington’s  farewell  address. 


317 


the  pious  man,  ought  to  respect  and  to  cherish  them.  A 
volume  could  not  trace  all  their  connexions  with  private 
and  public  felicity.  Let  it  simply  be  asked,  Where  is 
the  security  for  property,  for  reputation,  for  life,  if  the 
sense  of  religious  obligation  desert  the  oaths,  which  are 
the  instruments  of  investigation  in  Courts  of  Justice  ? 
And  let  us  with  caution  indulge  the  supposition,  that  mor¬ 
ality  can  be  maintained  without  religion.  Whatever 
may  be  conceded  to  the  influence  of  refined  education  on 
minds  of  peculiar  structure,  reason  and  experience  both 
forbid  us  to  expect,  that  national  morality  can  prevail  in 
exclusion  of  religious  principle. 

It  is  substantially  true,  that  virtue  or  morality  is  a  nec¬ 
essary  spring  of  popular  government.  The  rule,  indeed, 
extends  with  more  or  less  force  to  every  species  of  free 
government.  Who,  that  is  a.  sincere  friend  to  it,  can 
look  with  indifference  upon  attempts  to  shake  the  founda¬ 
tion  of  the  fabric  ? 

Promote,  then,  as  an  object  of  primary  importance, 
institutions  for  the  general  diffusion  of  knowledge.  In 
proportion  as  the  structure  of  a  government  gives  force  to 
public  opinion,  it  is  essential  that  public  opinion  should  be 
enlightened. 

As  a  very  important  source  of  strength  and  security, 
cherish  public  credit.  One  method  of  preserving  it  is,  to 
use  it  as  sparingly  as  possible ;  avoiding  occasions  of  ex¬ 
pense  by  cultivating  peace,  but  remembering  also  that 
timely  disbursements  to  prepare  for  danger  frequently 
prevent  much  greater  disbursements  to  repel  it ;  avoiding, 
likewise,  the  accumulation  of  debt,  not  only  by  shunning 
occasions  of  expense,  but  by  vigorous  exertions  in  time 
of  peace  to  discharge  the  debts,  which  unavoidable  wars 
may  have  occasioned,  not  ungenerously  throwing  upon 
posterity  the  burden,  which  we  ourselves  ought  to  bear. 
The  execution  of  these  maxims  belongs  to  your  represen¬ 
tatives,  but  it  is  necessary  that  public  opinion  should  co¬ 
operate.  To  facilitate  to  them  the  performance  of  their 
duty,  it  is  essential  that  you  should  practically  bear  in 
mind,  that  towards  the  payment  of  debts  there  must  be 
Revenue  ;  that  to  have  Revenue  there  must  be  taxes ; 

27* 


318 


APPENDIX. 


that  no  taxes  can  be  devised,  which  are  not  more  or  less 
inconvenient  and  unpleasant ;  that  the  intrinsic  embarrass¬ 
ment,  inseparable  from  the  selection  of  the  proper  objects, 
(which  is  always  a  choice  of  difficulties,)  ought  to  be  a 
decisive  motive  for  a  candid  construction  of  the  conduct 
of  the  government  in  making  it,  and  for  a  spirit  of  acqui¬ 
escence  in  the  measures  for  obtaining  Revenue,  which  the 
public  exigencies  may,  at  any  time,  dictate. 

Observe  good  faith  and  justice  towards  all  Nations  ; 
cultivate  peace  and  harmony  with  all.  Religion  and  Mor¬ 
ality  enjoin  this  conduct  ;  and  can  it  be,  that  good  policy 
does  not  equally  enjoin  it  ?  It  will  be  worthy  of  a  free, 
enlightened,  and,  at  no  distant  period,  a  great  Nation,  to 
give  to  mankind  the  magnanimous  and  too  novel  example 
of  a  people  always  guided  by  an  exalted  justice  and  be¬ 
nevolence.  Who  can  doubt,  that,  in  the  course  of  time 
and  things,  the  fruits  of  such  a  plan  would  richly  repay 
any  temporary  advantages,  which  might  be  lost  by  a  steady 
adherence  to  it  ?  Can  it  be,  that  Providence  has  not  con¬ 
nected  the  permanent  felicity  of  a  Nation  with  its  Virtue  ? 
The  experiment,  at  least,  is  recommended  by  every  sen¬ 
timent  which  ennobles  human  nature.  Alas  !  is  it  render¬ 
ed  impossible  by  its  vices  ? 

In  the  execution  of  such  a  plan,  nothing  is  more  es¬ 
sential,  than  that  permanent,  inveterate  antipathies  against 
particular  Nations,  and  passionate  attachments  for  others, 
should  be  excluded  ;  and  that,  in  place  of  them,  just  and 
amicable  feelings  towards  all  should  be  cultivated.  The 
Nation,  which  indulges  towards  another  an  habitual  hatred, 
or  an  habitual  fondness,  is  in  some  degree  a  slave.  It  is 
a  slave  to  its  animosity  or  to  its  affection,  either  of  which 
is  sufficient  to  lead  it  astray  from  its  duty  and  its  interest. 
Antipathy  in  one  nation  against  another  disposes  each  more 
readily  to  offer  insult  and  injury,  to  lay  hold  of  slight  causes 
of  umbrage,  and  to  be  haughty  and  intractable,  when  ac¬ 
cidental  or  trifling  occasions  of  dispute  occur.  Hence 
frequent  collisions,  obstinate,  envenomed,  and  bloody  con¬ 
tests.  The  Nation,  prompted  by  ill-will  and  resentment, 
sometimes  impels  to  war  the  Government,  contrary  to  the 
best  calculations  of  policy.  The  Government  sometimes 


Washington’s  farewell  address.  319 

participates  in  the  national  propensity,  and  adopts  through 
passion  what  reason  would  reject ;  at  other  times,  it 
makes  the  animosity  of  the  Nation  subservient  to  projects 
of  hostility  instigated  by  pride,  ambition,  and  other  sinis¬ 
ter  and  pernicious  motives.  The  peace  often,  sometimes 
perhaps  the  liberty,  of  Nations  has  been  the  victim. 

So,  likewise,  a  passionate  attachment  of  one  Nation  for 
another  produces  a  variety  of  evils.  Sympathy  for  the 
favorite  Nation,  facilitating  the  illusion  ol  an  imaginary 
common  interest,  in  cases  where  no  real  common  inter¬ 
est  exists,  and  infusing  into  one  the  enmities  of  the  other, 
betrays  the  former  into  a  participation  in  the  quarrels 
and  wars  of  the  latter,  without  adequate  inducement  or 
justification.  It  leads  also,  to  concessions  to  the  favorite 
Nation  of  privileges  denied  to  others,  which  is  apt  doubly 
to  injure  the  Nation  making  the  concessions  ;  by  unnec¬ 
essarily  parting  with  what  ought  to  have  been  retained, 
and  by  exciting  jealousy,  ill  will,  and  a  disposition  to  re¬ 
taliate,  in  the  parties  from  whom  equal  privileges  are 
withheld  ;  and  it  gives  to  ambitious,  corrupted,  or  deluded 
citizens,  (who  devote  themselves  to  the  favorite  nation,) 
facility  to  betray  or  sacrifice  the  interest  of  their  own 
country,  without  odium,  sometimes  even  with  populari¬ 
ty  ;  gilding  with  the  appearances  of  a  virtuous  sense  of  ob¬ 
ligation,  a  commendable  deference  for  public  opinion,  or 
a  laudable  zeal  for  public  good,  the  base  or  foolish  com¬ 
pliances  of  ambition,  corruption,  or  infatuation. 

As  avenues  to  foreign  influence,  in  innumerable  ways, 
such  attachments  are  particularly  alarming,  to  the  truly 
enlightened  and  independent  Patriot.  How  many  oppor¬ 
tunities  do  they  afford,  to  tamper  with  domestic  factions, 
to  practise  the  arts  of  seduction,  to  mislead  public  opin¬ 
ion,  to  influence  or  awe  the  Public  Councils  !  Such  an 
attachment  of  a  small  or  weak,  towards  a  great  and  pow¬ 
erful,  nation,  dooms  the  former  to  be  the  satellite  of  the 
latter. 

Against  the  insidious  wiles  of  foreign  influence,  (I 
conjure  you  to  believe  me,  fellow-citizens,)  the  jealousy 
of  a  free  people  ought  to  be  constantly  awake  ;  since 
history  and  experience  prove,  that  foreign  influence  is  one 


320 


APPENDIX. 


of  the  most  baneful  foes  of  Republican  Government.  But 
that  jealousy,  to  be  useful,  must  be  impartial ;  else  it  be¬ 
comes  the  instrument  of  the  very  influence  to  be  avoided, 
instead  of  a  defence  against  it.  Excessive  partiality  for 
one  foreign  nation,  and  excessive  dislike  of  another, 
cause  those  whom  they  actuate  to  see  danger  only  on  one 
side,  and  serve  to  veil  and  even  second  the  arts  of  influ¬ 
ence  on  the  other.  Real  patriots,  who  may  resist  the 
intrigues  of  the  favorite,  are  liable  to  become  suspected 
and  odious  ;  while  its  tools  and  dupes  usurp  the  applause 
and  confidence  of  the  people,  to  surrender  their  inter¬ 
ests. 

The  great  rule  of  conduct  for  us,  in  regard  to  foreign 
nations,  is,  in  extending  our  commercial  relations,  to  have 
with  them  as  little  political  connection  as  possible.  So 
far  as  we  have  already  formed  engagements,  let  them  be 
fulfilled  with  perfect  good  faith.  Here  let  us  stop. 

Europe  has  a  set  of  primary  interests,  which  to  us  have 
none,  or  a  very  remote  relation.  Hence  she  must  be 
engaged  in  frequent  controversies,  the  causes  of  which 
are  essentially  foreign  to  our  concerns.  Hence,  there¬ 
fore,  it  must  be  unwise  in  us  to  implicate  ourselves,  by 
artificial  ties,  in  the  ordinary  vicissitudes  of  her  politics, 
or  the  ordinary  combinations  and  collisions  of  her  friend¬ 
ships  or  enmities. 

Our  detached  and  distant  situation  invites  and  enables 
us  to  pursue  a  different  course.  If  we  remain  one  peo¬ 
ple,  under  an  efficient  government,  the  period  is  not  far 
oft',  when  we  may  defy  material  injury  from  external  an¬ 
noyance  ;  when  we  may  take  such  an  attitude  as  will 
cause  the  neutrality,  we  may  at  any  time  resolve  upon, 
to  be  scrupulously  respected  ;  when  belligerent  nations, 
under  the  impossibility  of  making  acquisitions  upon  us, 
will  not  lightly  hazard  the  giving  us  provocation  ;  when 
we  may  choose  peace  or  war,  as  our  interest,  guided  by 
justice,  shall  counsel. 

Why  forego  the  advantages  of  so  peculiar  a  situation  ? 
Why  quit  our  own,  to  stand  upon  foreign  ground  ?  Why, 
by  interweaving  our  destiny  with  that  of  any  part  of  Eu¬ 
rope,  entangle  our  peace  and  prosperity  in  the  toils  of 


Washington’s  farewell  address. 


321 


European  ambition,  rivalship,  interest,  humor,  or  ca¬ 
price  ? 

It  is  our  true  policy  to  steer  clear  of  permanent  alliances 
with  any  portion  of  the  foreign  world  ;  so  far,  I  mean,  as 
we  are  now  at  liberty  to  do  it  ;  for  let  me  not  be  under¬ 
stood  as  capable  of  patronising  infidelity  to  existing  en¬ 
gagements.  I  hold  the  maxim  no  less  applicable  to  pub¬ 
lic  than  to  private  affairs,  that  honesty  is  always  the  best 
policy.  I  repeat  it,  therefore,  let  those  engagements  be 
observed  in  their  genuine  sense.  But,  in  my  opinion,  it 
is  unnecessary  and  would  be  unwise  to  extend  them. 

Taking  care  always  to  keep  ourselves,  by  suitable  es¬ 
tablishments,  on  a  respectable  defensive  posture,  we  may 
safely  trust  to  temporary  alliances,  for  extraordinary  emer¬ 
gencies. 

Harmony,  and  a  liberal  intercourse  with  all  nations, 
are  recommended  by  policy,  humanity,  and  interest.  But 
even  our  commercial  policy  should  hold  an  equal  and  im¬ 
partial  hand  ;  neither  seeking  nor  granting  exclusive  fa¬ 
vors  or  preferences  ;  consulting  the  natural  course  of 
things  ;  diffusing  and  diversifying,  by  gentle  means,  the 
streams  of  commerce,  but  forcing  nothing  ;  establishing, 
with  powers  so  disposed,  in  order  to  give  trade  a  stable 
course,  to  define  the  rights  of  our  merchants,  and  to  ena¬ 
ble  the  government  to  support  them,  conventional  rules 
of  intercourse,  the  best  that  present  circumstances  and 
mutual  opinion  will  permit,  but  temporary,  and  liable  to 
be  from  time  to  time  abandoned  or  varied,  as  experience 
and  circumstances  shall  dictate  ;  constantly  keeping  in 
view,  that  it  is  folly  in  one  nation  to  look  for  disinterest¬ 
ed  favors  from  another  ;  that  it  must  pay  with  a  portion 
of  its  independence  for  whatever  it  may  accept  under  that 
character  ;  that,  by  such  acceptance,  it  may  place  itself 
in  the  condition  of  having  given  equivalents  for  nominal 
favors,  and  yet  of  being  reproached  with  ingratitude  for 
not  giving  more.  There  can  be  no  greater  error  than  to 
expect  or  calculate  upon  real  favors  from  nation  to  na¬ 
tion.  It  is  an  illusion,  which  experience  must  cure, 
which  a  just  pride  ought  to  discard. 

In  offering  to  you,  my  countrymen,  these  counsels  of  an 


322 


APPENDIX. 


old  and  affectionate  friend,  I  dare  not  hope  they  will 
make  the  strong  and  lasting  impression  I  could  wish  ;  that 
they  will  control  the  usual  current  of  the  passions,  or  pre¬ 
vent  our  nation  from  running  the  course,  which  has  hith-_ 
erto  marked  the  destiny  of  nations.  But,  if  I  may  even 
flatter  myself,  that  they  may  be  productive  of  some  par¬ 
tial  benefit,  some  occasional  good  ;  that  they  may  now 
and  then  recur  to  moderate  the  fury  of  party  spirit,  to 
warn  against  the  mischiefs  of  foreign  intrigue,  to  guard 
against  the  impostures  of  pretended  patriotism  ;  this  hope 
will  be  a  full  recompense  for  the  solicitude  for  your  wel¬ 
fare,  by  which  they  have  been  dictated. 

How  far,  in  the  discharge  of  my  official  duties,  I  have 
been  guided  by  the  principles  which  have  been  delinea¬ 
ted,  the  public  records  and  other  evidences  of  my  conduct 
must  witness  to  you  and  to  the  world.  To  myself,  the 
assurance  of  my  own  conscience  is,  that  I  have  at  least 
believed  myself  to  be  guided  by  them. 

In  relation  to  the  still  subsisting  war  in  Europe,  my 
Proclamation  of  the  22d  of  April,  1793,  is  the  index  to 
my  Plan.  Sanctioned  by  your  approving  voice,  and  by 
that  of  your  Representatives  in  both  Houses  of  Congress, 
the  spirit  of  that  measure  has  continually  governed  me,  un¬ 
influenced  by  any  attempts  to  deter  or  divert  me  from  it. 

After  deliberate  examination,  with  the  aid  of  the  best 
lights  I  could  obtain,  I  was  well  satisfied  that  our  country, 
under  all  the  circumstances  of  the  case,  had  a  right  to  take, 
and  was  bound  in  duty  and  interest  to  take,  a  neutral  po¬ 
sition.  Having  taken  it,  I  determined,  as  far  as  should 
depend  upon  me,  to  maintain  it,  with  moderation,  perse¬ 
verance,  and  firmness. 

The  considerations,  which  respect  the  right  to  hold 
this  conduct,  it  is  not  necessary  on  this  occasion  to  detail. 

I  will  only  observe,  that,  according  to  my  understanding 
of  the  matter,  that  right,  so  far  from  being  denied  by  any 
of  the  Belligerent  Powers,  has  been  virtually  admitted 
by  all. 

The  duty  of  holding  a  neutral  conduct  may  be  inferred, 
without  any  thing  more,  from  the  obligation  which  justice 
and  humanity  impose  on  every  nation,  in  cases  in  which 


Washington’s  farewell  address. 


323 


it  is  free  to  act,  to  maintain  inviolate  the  relations  of  peace 
and  amity  towards  other  nations. 

The  inducements  of  interest  for  observing  that  conduct 
will  best  be  referred  to  your  own  reflections  and  experi¬ 
ence.  With  me,  a  predominant  motive  has  been  to  en¬ 
deavor  to  gain  time  to  our  country  to  settle  and  mature 
its  yet  recent  institutions,  and  to  progress  without  inter¬ 
ruption  to  that  degree  of  strength  and  consistency,  which 
is  necessary  to  give  it,  humanly  speaking,  the  command 
of  its  own  fortunes. 

Though,  in  reviewing  the  incidents  of  my  administra¬ 
tion,  I  am  unconscious  of  intentional  error,  I  am  never¬ 
theless  too  sensible  of  my  defects,  not  to  think  it  probable 
that  I  may  have  committed  many  errors.  Whatever  they 
may  be,  I  fervently  beseech  the  Almighty  to  avert  or 
mitigate  the  evils  to  which  they  may  tend.  I  shall  also 
carry  with  me  the  hope,  that  my  Country  will  never 
cease  to  view  them  with  indulgence  ;  and  that,  after  for¬ 
ty-five  years  of  my  life  dedicated  to  its  service  with  an 
upright  zeal,  the  faults  of  incompetent  abilities  will  be 
consigned  to  oblivion,  as  myself  must  soon  be  to  the  man¬ 
sions  of  rest. 

Relying  on  its  kindness  in  this  as  in  other  things,  and 
actuated  by  that  fervent  love  towards  it,  which  is  so  nat¬ 
ural  to  a  man,  who  views  in  it  the  native  soil  of  himself  and 
his  progenitors  for  several  generations  ;  I  anticipate  with' 
pleasing  expectation  that  retreat,  in  which  I  promise  my¬ 
self  to  realize,  without  alloy,  the  sweet  enjoyment  of  par¬ 
taking,  in  the  midst  of  my  fellow-citizens,  the  benign 
influence  of  good  laws  under  a  free  government,  the  ever 
favorite  object  of  my  heart,  and  the  happy  reward,  as  I 
trust,  of  our  mutual  cares,  labors,  and  dangers. 

George  Washington. 

United  States ,  September  17 th,  1796. 


324 


APPENDIX. 


DEFINITIVE  TREATY  OF  PEACE 

BETWEEN  THE  UNITED  STATES  OF  AMERICA,  AND 
HIS  BRITANNIC  MAJESTY. 

In  the  Name  op  the  Most  Holy  and  Undivided  Trinity. 

It  having  pleased  the  Divine  Providence  to  dispose 
the  hearts  of  the  most  serene  and  most  potent  prince, 
George  the  Third,  by  the  grace  of  God  King  of  Great 
Britain,  France,  and  Ireland,  Defender  of  the  Faith,  Duke 
of  Brunswick  and  Luneburg,  Arch  Treasurer  and  Prince 
Elector  of  the  holy  Roman  empire,  &c.  and  of  the  United 
States  of  America,  to  forget  all  past  misunderstandings 
and  differences  that  have  unhappily  interrupted  the  good 
correspondence  and  friendship  which  they  mutually  wist) 
to  restore  ;  and  to  establish  such  a  beneficial  and  satis¬ 
factory  intercourse  between  the  two  countries,  upon  the 
ground  of  reciprocal  advantages  and  mutual  convenience, 
as  may  promote  and  secure  to  both  perpetual  peace  and 
harmony  :  And  having,  for  this  desirable  end,  already  laid 
the  foundation  of  peace  and  reconciliation,  by  the  Provis¬ 
ional  Articles,  signed  at  Paris,  on  the  thirtieth  of  Novem¬ 
ber,  one  thousand  seven  hundred  and  eighty-two,  by  the 
Commissioners  empowered  on  each  part,  which  articles 
were  agreed  to  be  inserted  in,  and  to  constitute  the  Trea¬ 
ty  of  Peace  proposed  to  be  concluded  between  the  Crown 
of  Great  Britain  and  the  said  United  States,  but  which 
Treaty  was  not  to  be  concluded  until  terms  of  peace  should 
be  agreed  upon  between  Great  Britain  and  France,  and 
his  Britannic  Majesty  should  be  ready  to  conclude  such 
Treaty  accordingly  ;  and  the  Treaty  between  Great  Brit¬ 
ain  and  France  having  since  been  concluded,  his  Britan¬ 
nic  Majesty  and  the  United  States  of  America,  in  order  to 
carry  into  full  effect  the  Provisional  Articles  above  men¬ 
tioned,  according  to  the  tenor  thereof,  have  constituted 
and  appointed,  that  is  to  say  :  his  Britannic  Majesty  on 
his  part,  David  Hartley,  esquire,  member  of  the  Parlia¬ 
ment  of  Great  Britain  ;  and  the  said  United  States  on  their 


DEFINITIVE  TREATY  OF  PEACE  OF  1783.  325 

part,  John  Adams,  esquire,  late  a  Commissioner  of  the 
United  States  of  America  at  the  Court  of  Versailles,  late 
Delegate  in  Congress  from  the  State  of  Massachusetts,  and 
Chief  Justice  of  the  said  State,  and  Minister  Plenipoten¬ 
tiary  of  the  said  United  States  to  their  High  Mightinesses 
the  States  General  of  the  United  Netherlands  ;  Benjamin 
Franklin,  esquire,  late  Delegate  in  Congress  from  the  State 
of  Pennsylvania,  President  of  the  Convention  of  the  said 
State,  and  Minister  Plenipotentiary  from  the  United  States 
of  America  at  the  Court  of  V ersailles  ;  John  Jay,  esquire, 
late  President  of  Congress,  and  Chief  Justice  of  the  State 
of  New  York,  and  Minister  Plenipotentiary  from  the  said 
United  States  at  the  Court  of  Madrid,  to  be  the  Plenipo¬ 
tentiaries  for  the  concluding  and  signing  the  present  de¬ 
finitive  Treaty  ;  who,  after  having  reciprocally  communi¬ 
cated  their  respective  full  powers,  have  agreed  upon  and 
confirmed  the  following  articles  : 

Art.  1.  His  Britannic  Majesty  acknowledges  the  said 
United  States,  namely,  New  Hampshire,  Massachusetts 
Bay,  Rhode  Island  and  Providence  Plantations,  Connec¬ 
ticut,  New  York,  New  Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  North  Carolina,  South  Carolina,  and 
Georgia,  to  be  free,  sovereign,  and  independent  States  ; 
that  he  treats  with  them  as  such  ;  and  for  himself,  his 
heirs  and  successors,  relinquishes  all  claims  to  the  gov¬ 
ernment,  propriety,  and  territorial  rights  of  the  same,  and 
every  part  thereof. 

Art.  2.  And  that  all  disputes  which  might  arise  in 
future,  on  the  subject  of  the  boundaries  of  the  said  United 
States  may  be  prevented,  it  is  hereby  agreed  and  de¬ 
clared,  that  the  following  are  and  shall  be  their  bounda¬ 
ries,  namely,  from  the  northwest  angle  of  Nova  Scotia, 
namely,  that  angle  which  is  formed  by  a  line  drawn  due 
north  from  the  source  of  St.  Croix  river  to  the  Highlands  ; 
along  the  said  Highlands  which  divide  those  rivers  that 
empty  themselves  into  the  river  St.  Lawrence  from  those 
which  fall  into  the  Atlantic  ocean,  to  the  northwestern- 
most  head  of  Connecticut  river,  thence  down  along 
the  middle  of  that  river,  to  the  forty-fifth  degree  of  north 
latitude  ;  from  thence,  by  a  line  due  west  on  said  lati- 

28  xiii. 


326 


APPENDIX. 


tude,  until  it  strikes  the  river  Iroquois  or  Cataraquy  ; 
thence  along  the  middle  of  said  river  into  lake  Ontario, 
through  the  middle  of  said  lake  until  it  strikes  the  com¬ 
munication  by  water  between  that  lake  and  lake  Erie  ; 
thence  along  the  middle  of  said  communication  into  lake 
Erie,  through  the  middle  of  said  lake  until  it  arrives  at 
the  water  communication  between  that  lake  and  lake  Hu¬ 
ron  ;  thence  along  the  middle  of  said  water  communica¬ 
tion  into  the  lake  Huron  ;  thence  through  the  middle  of 
said  lake  to  the  water  communication  between  that  lake 
and  lake  Superior  ;  thence  through  lake  Superior  north¬ 
ward  of  the  isles  Royal  and  Philipeaux,  to  the  Long 
Lake  ;  thence  through  the  middle  of  the  said  Long  Lake, 
and  the  water  communication  between  it  and  the  lake  of 
the  Woods,  to  the  said  lake  of  the  Woods  ;  thence 
through  the  said  lake  to  the  most  northwestern  point 
thereof,  and  from  thence  on  a  due  west  course  to  the  riv¬ 
er  Mississippi  ;  thence  by  a  line  to  be  drawn  along  the 
middle  of  the  said  river  Mississippi  until  it  shall  intersect 
the  northernmost  part  of  the  thirty-first  degree  of  north 
latitude.  South,  by  a  line  to  be  drawn  due  east  from  the 
determination  of  the  line  last  mentioned,  in  the  latitude 
of  thirty-one  degrees  north  of  the  equator,  to  the  middle 
of  the  river  Appalachicola  or  Catahouche  ;  thence  along 
the  middle  thereof  to  its  junction  with  the  Flint  river  ; 
thence  straight  to  the  head  of  St.  Mary’s  river  ;  and 
thence  down  along  the  middle  of  St.  Mary’s  river  to  the 
Atlantic  ocean.  East,  by  a  line  to  be  drawn  along  the 
middle  of  the  river  St.  Croix,  from  its  mouth,  in  the  Bay 
of  Fundy,  to  its  source,  and  from  its  source,  directly 
north,  to  the  aforesaid  Highlands,  which  divide  the  rivers 
that  fall  into  the  Atlantic  ocean  from  those  which  fall  into 
the  river  St.  Lawrence  :  comprehending  all  islands  with¬ 
in  twenty  leagues  of  any  part  of  the  shores  of  the  United 
States,  and  lying  between  lines  to  be  drawn  due  east 
from  the  points  where  the  aforesaid  boundaries  between 
Nova  Scotia  on  the  one  part,  and  East  Florida  on  the 
other,  shall  respectively  touch  the  bay  of  Fundy,  and  the 
Atlantic  ocean  ;  excepting  such  islands  as  now  are,  or 
heretofore  have  been,  within  the  limits  of  the  said  Prov¬ 
ince  of  Nova  Scotia. 


DEFINITIVE  TREATY  OF  PEACE  OF  1783.  327 


Art.  3.  It  is  agreed  that  the  people  of  the  United 
States  shall  continue  to  enjoy  unmolested  the  right  to  take 
fish  of  every  kind  on  the  Grand  Bank,  and  on  all  the  other 
banks  of  Newfoundland  ;  also,  in  the  Gulf  of  St.  Law¬ 
rence,  and  at  all  other  places  in  the  sea,  where  the  in¬ 
habitants  of  both  countries  used  at  any  time  heretofore  to 
fish  ;  and  also,  that  the  inhabitants  of  the  United  States 
shall  have  liberty  to  take  fish  of  every  kind  on  such  part 
of  the  coast  of  Newfoundland  as  British  fishermen  shall 
use  ;  (but  not  to  dry  or  cure  the  same  on  that  island  ;) 
and  also  on  the  coasts,  bays,  and  creeks,  of  all  other  of 
his  Britannic  Majesty’s  dominions  in  America  ;  and  that 
the  American  fishermen  shall  have  liberty  to  dry  and  cure 
fish  in  any  of  the  unsettled  bays,  harbors,  and  creeks  of 
Nova  Scotia,  Magdalen  Islands,  and  Labrador,  so  long 
as  the  same  shall  remain  unsettled  ;  but  so  soon  as  the 
same  or  either  of  them  shall  be  settled,  it  shall  not  be  law¬ 
ful  for  the  said  fishermen  to  dry  or  cure  fish  at  such  set- 
'  dement,  without  a  previous  agreement  for  that  purpose 
with  the  inhabitants,  proprietors,  or  possessors  of  the 
ground. 

Art.  4.  It  is  agreed  that  creditors  on  either  side  shall 
meet  with  no  lawful  impediment  to  the  recovery  of  the 
full  value  in  sterling  money,  of  all  bona  fide  debts  hereto¬ 
fore  contracted. 

Art.  5.  It  is  agreed  that  the  Congress  shall  earnest¬ 
ly  recommend  it  to  the  Legislatures  of  the  respective 
States,  to  provide  for  the  restitution  of  all  estates,  rights, 
and  properties,  which  have  been  confiscated,  belonging 
to  real  British  subjects,  and  also  of  the  estates,  rights, 
and  properties  of  persons  resident  in  districts  in  the  pos¬ 
session  of  his  Majesty’s  arms,  and  who  have  not  borne 
arms  against  the  said  United  States.  And  that  persons 
of  any  other  description  shall  have  free  liberty  to  go  to  any 
part  or  parts  of  any  of  the  thirteen  United  States,  and 
therein  to  remain  twelve  months,  unmolested  in  their  en¬ 
deavors  to  obtain  the  restitution  of  such  of  their  estates, 
rights,  and  properties,  as  may  have  been  confiscated  ; 
and  that  Congress  shall  also  earnestly  recommend  to  the 
several  States,  a  reconsideration  and  revision  of  all  acts 


328 


APPENDIX. 


or  laws  regarding  the  premises,  so  as  render  the  said  laws 
or  acts  perfectly  consistent,  not  only  with  justice  and 
equity,  but  with  that  spirit  of  conciliation,  which,  on  the 
return  of  the  blessings  of  peace,  should  universally  pre¬ 
vail.  And  that  Congress  shall  also  earnestly  recommend 
to  the  several  States,  that  the  estates,  rights,  and  properties 
of  such  last-mentioned  persons,  shall  be  restored  to  them, 
they  refunding  to  any  persons  who  may  be  now  in  pos¬ 
session,  the  bona  fide  price  (where  any  has  been  given) 
which  such  persons  may  have  paid  on  purchasing  any  of 
the  said  lands,  rights,  or  properties,  since  the  confisca¬ 
tion.  And  it  is  agreed,  that  all  persons  who  have  any 
interest  in  confiscated  lands,  either  by  debts,  marriage 
settlements,  or  otherwise,  shall  meet  with  no  lawful  im¬ 
pediment  in  the  prosecution  of  their  just  rights. 

Art.  6.  That  there  shall  be  no  future  confiscations 
made,  nor  any  prosecutions  commenced  against  any  per¬ 
son  or  persons  for,  or  by  reason  of,  the  part  which  he  or 
they  may  have  taken  in  the  present  war  ;  and  that  no 
person  shall,  on  that  account,  suffer  any  future  loss  or 
damage,  either  in  his  person,  liberty,  or  property  ;  and 
that  those  who  may  be  in  confinement  on  such  charges, 
at  the  time  of  the  ratification  of  the  Treaty  in  America, 
shall  be  immediately  set  at  liberty,  and  the  prosecutions 
so  commenced  be  discontinued. 

Art.  7.  There  shall  be  a  firm  and  perpetual  peace 
between  his  Britannic  Majesty  and  the  said  States,  and 
between  the  subjects  of  the  one  and  the  citizens  of  the 
other,  wherefore  all  hostilities,  both  by  sea  and  land,  shall 
from  henceforth  cease  :  all  prisoners  on  both  sides  shall 
be  set  at  liberty  ;  and  his  Britannic  Majesty  shall,  with  all 
convenient  speed,  and  without  causing  any  destruction, 
or  carrying  away  any  negroes  or  other  property  of  the 
American  inhabitants,  withdraw  all  his  armies,  garrisons, 
and  fleets,  from  the  said  United  States,  and  from  every 
post,  place,  and  harbor  within  the  same  ;  leaving  in  all 
fortifications  the  American  artillery  that  may  be  therein  ; 
and  shall  also  order  and  cause  all  archives,  records,  deeds, 
and  papers,  belonging  to  any  of  the  said  States,  or  their 
citizens,  which,  in  the  course  of  the  war,  may  have  fal- 


AN  ORDINANCE. 


329 


len  into  the  hands  of  his  officers,  to  be  forthwith  restored 
and  delivered  to  the  proper  States  and  persons  to  whom 
they  belong. 

Art.  8.  The  navigation  of  the  river  Mississippi,  from 
its  source  to  the  ocean,  shall  for  ever  remain  free  and 
open  to  the  subjects  of  Great  Britain,  and  the  citizens  of 
the  United  States. 

Art.  9.  In  case  it  should  so  happen  that  any  place  or 
territory  belonging  to  Great  Britain  or  to  the  United 
States,  should  have  been  conquered  by  the  arms  of  either 
from  the  other,  before  the  arrival  of  the  said  Provisional 
Articles  in  America,  it  is  agreed,  that  the  same  shall  be 
restored  without  difficulty,  and  without  requiring  any  com¬ 
pensation. 

Art.  10.  The  solemn  ratifications  of  the  present  Trea¬ 
ty,  expedited  in  good  and  due  form,  shall  be  exchanged 
between  the  contracting  parties,  in  the  space  of  six 
months,  or  sooner  if  possible,  to  be  computed  from  the 
day  of  the  signature  of  the  present  Treaty.  In  witness 
whereof,  we,  the  undersigned,  their  Ministers  Plenipoten¬ 
tiary,  have,  in  their  name  and  in  virtue  of  our  full  powers, 
signed  with  our  hands  the  present  definitive  Treaty,  and 
caused  the  seals  of  our  arms  to  be  affixed  thereto.  Done 
at  Paris,  this  third  day  of  September,  in  the  year  of  our 
Lord  one  thousand  seven  hundred  and  eighty-three. 

[l.  s.]  D.  HARTLEY, 

[l.  s.]  JOHN  ADAMS, 

[l.  s.]  B.  FRANKLIN, 

[l.  s.]  JOHN  JAY. 


AN  ORDINANCE 

FOR  THE  GOVERNMENT  OF  THE  TERRITORY  OF  THE 
UNITED  STATES  NORTHWEST  OF  THE  RIVER  OHIO. 

Be  it  ordained  by  the  United  States  in  Congress  as¬ 
sembled,  That  the  said  Territory,  for  the  purposes  of 
temporary  government,  be  one  District ;  subject,  howev- 

28* 


330 


APPENDIX* 


er,  to  be  divided  into  two  Districts,  as  future  circumstan¬ 
ces  may,  in  the  opinion  of  Congress,  make  it  expedient. 

Be  it  ordained  by  the  authority  aforesaid,  That  the 
estates  both  of  resident  and  non-resident  proprietors  in 
the  said  Territory,  dying  intestate,  shall  descend  to,  and 
be  distributed  among  their  children,  and  the  descendants 
of  a  deceased  child,  in  equal  parts  ;  the  descendants  of  a 
deceased  child  or  grandchild  to  take  the  share  of  their 
deceased  parent  in  equal  parts  among  them  :  and  where 
there  shall  be  no  children  or  descendants,  then  in  equal 
parts  to  the  next  of  kin,  in  equal  degree  ;  and  among  col¬ 
laterals,  the  children  of  a  deceased  brother  or  sister  of 
the  intestate  shall  have,  in  equal  parts  among  them,  their 
deceased  parents’  share  ;  and  there  shall,  in  no  case,  be 
a  distinction  between  kindred  of  the  whole  and  half 
blood  ;  saving  in  all  cases  to  the  widow  of  the  intestate, 
her  third  part  of  the  real  estate  for  life,  and  one  third 
part  of  the  personal’  estate  ;  and  this  law  relative  to  de¬ 
scents  and  dower,  shall  remain  in  full  force,  until  altered 
by  the  Legislature  of  the  District.  And  until  the  Govern¬ 
or  and  Judges  shall  adopt  laws  as  herein  after  mentioned, 
estates  in  the  said  Territory  may  be  devised  or  bequeath¬ 
ed  by  wills  in  writing,  signed  and  sealed  by  him  or  her, 
in  whom  the  estate  may  be,  (being  of  full  age,)  and  at¬ 
tested  by  three  witnesses  ;  and  real  estates  may  be  con¬ 
veyed  by  lease  and  release,  or  bargain  and  sale,  signed, 
sealed,  and  delivered,  by  the  person,  being  of  full  age, 
in  whom  the  estate  may  be,  and  attested  by  two  witnes¬ 
ses,  provided  such  wills  be  duly  proved,  and  such  con¬ 
veyances  be  acknowledged,  or  the  execution  thereof  duly 
proved,  and  be  recorded  within  one  year  after  proper 
magistrates,  courts,  and  registers,  shall  be  appointed  for 
that  purpose  ;  and  personal  property  may  be  transferred 
by  delivery  ;  saving,  however,  to  the  French  and  Cana¬ 
dian  inhabitants,  and  other  settlers  of  the  Kaskaskies, 
Saint  Vincents,  and  the  neighboring  villages,  who  have 
heretofore  professed  themselves  citizens  of  Virginia,  their 
laws  and  customs  now  in  force  among  them,  relative  to 
the  descent  and  conveyance  of  property. 

Be  it  ordained  by  the  authority  aforesaid,  That  there 


AN  ORDINANCE. 


331 


shall  be  appointed,  from  time  to  time,  by  Congress,  a 
Governor,  whose  commission  shall  continue  in  force  for 
the  term  of  three  years,  unless  sooner  revoked  by  Con¬ 
gress  :  he  shall  reside  in  the  District,  and  have  a  freehold 
estate  therein,  in  one  thousand  acres  of  land,  while  in  the 
exercise  of  his  office. 

There  shall  be  appointed,  from  time  to  time,  by  Con¬ 
gress,  a  Secretary,  whose  commission  shall  continue  in 
force  for  four  years,  unless  sooner  revoked  ;  he  shall  re¬ 
side  in  the  District,  and  have  a  freehold  estate  therein,  in 
five  hundred  acres  of  land,  while  in  the  exercise  of  his 
office  ;  it  shall  be  his  duty  to  keep  and  preserve  the  acts 
and  laws  passed  by  the  Legislature,  and  the  public  rec¬ 
ords  of  the  District,  and  the  proceedings  of  the  Governor 
in  his  executive  department ;  and  transmit  authentic  cop¬ 
ies  of  such  acts  and  proceedings,  every  six  months,  to 
the  Secretary  of  Congress  :  There  shall  also  be  appoint¬ 
ed  a  court,  to  consist  of  three  Judges,  any  two  of  whom 
to  form  a  court,  who  shall  have  a  common  law  jurisdic¬ 
tion,  and  reside  in  the  District,  and  have  each  therein  a 
freehold  estate,  in  five  hundred  acres  of  land,  while  in  the 
exercise  of  their  offices  ;  and  their  commissions  shall 
continue  in  force  during  good  behavior. 

The  Governor  and  Judges,  or  a  majority  of  them,  shall 
adopt  and  publish  in  the  District,  such  laws  of  the  origin¬ 
al  States,  criminal  and  civil,  as  may  be  necessary,  and 
best  suited  to  the  circumstances  of  the  District,  and  re¬ 
port  them  to  Congress,  from  time  to  time  ;  which  laws 
shall  be  in  force  in  the  District  until  the  organization  of 
the  General  Assembly  therein,  unless  disapproved  of  by 
Congress  ;  but  afterwards  the  Legislature  shall  have  au¬ 
thority  to  alter  them  as  they  shall  think  fit. 

The  Governor  for  the  time  being,  shall  be  command¬ 
er-in-chief  of  the  militia,  appoint  and  commission  all 
officers  in  the  same,  below  the  rank  of  general  officers  ; 
all  general  officers  shall  be  appointed  and  commissioned 
by  Congress. 

Previous  to  the  organization  of  the  General  Assembly, 
the  Governor  shall  appoint  such  magistrates  and  other 
civil  officers,  in  each  county  or  township,  as  he  shall  find 


332 


APPENDIX. 


necessary  for  the  preservation  of  the  peace  and  good  or¬ 
der  in  the  same.  After  the  General  Assembly  shall  be 
organized,  the  powers  and  duties  of  magistrates  and  other 
civil  officers  shall  be  regulated  and  defined  by  the  said 
assembly  ;  but  all  magistrates  and  other  civil  officers, 
not  herein  otherwise  directed,  shall,  during  the  continu¬ 
ance  of  this  temporary  government,  be  appointed  by  the 
Governor. 

For  the  prevention  of  crimes  and  injuries,  the  laws  to 
be  adopted  or  made  shall  have  force  in  all  parts  of  the 
District,  and  for  the  execution  of  process,  criminal  and 
civil,  the  Governor  shall  make  proper  divisions  thereof ; 
and  he  shall  proceed  from  time  to  time,  as  circumstances 
may  require,  to  lay  out  the  parts  of  the  District  in  which 
the  Indian  titles  shall  have  been  extinguished,  into  coun¬ 
ties  and  townships,  subject,  however,  to  such  alterations 
as  may  thereafter  be  made  by  the  Legislature. 

So  soon  as  there  shall  be  five  thousand  free  male  in¬ 
habitants,  of  full  age,  in  the  District,  upon  giving  proof 
thereof  to  the  Governor,  they  shall  receive  authority,  with 
time  and  place,  to  elect  Representatives  from  their  coun¬ 
ties  or  townships,  to  represent  them  in  the  General  Assem¬ 
bly  ;  provided  that,  for  every  five  hundred  free  male  in¬ 
habitants,  there  shall  be  one  Representative,  and  so  on, 
progressively,  with  the  number  of  free  male  inhabitants, 
shall  the  right  of  representation  increase,  until  the  number 
of  Representatives  shall  amount  to  twenty-five  ;  after  which 
the  number  and  proportion  of  Representatives  shall  be  reg¬ 
ulated  by  the  Legislature  ;  provided,  that  no  person  be 
eligible  or  qualified  to  act  as  a  Representative,  unless  he 
shall  have  been  a  citizen  of  one  of  the  United  States 
three  years,  and  be  a  resident  in  the  District,  or  unless 
he  shall  have  resided  in  the  District  three  years  ;  and  in 
either  case,  shall  likewise  hold  in  his  own  right,  in  fee 
simple,  two  hundred  acres  of  land  within  the  same  ;  pro¬ 
vided  also,  that  a  freehold  in  fifty  acres  of  land  in  the 
District,  having  been  a  citizen  of  one  of  the  States,  and 
being  resident  in  the  District,  or  the  like  freehold  and  two 
years  residence  in  the  District,  shall  be  necessary  to  qual¬ 
ify  a  man  as  an  elector  of  a  Representative. 


AN  ORDINANCE. 


333 


The  Representatives,  thus  elected,  shall  serve  for  the 
term  of  two  years  ;  and  in  case  of  the  death  of  a  Repre- 
tative,  or  removal  from  office,  the  Governor  shall  issue  a 
writ  to  the  county  or  township,  for  which  he  was  a  mem¬ 
ber,  to  elect  another  in  his  stead,  to  serve  for  the  residue 
of  the  term. 

The  General  Assembly,  or  Legislature,  shall  consist  of 
the  Governor,  Legislative  Council,  and  a  House  of  Repre¬ 
sentatives.  The  Legislative  Council  shall  consist  of  five 
members,  to  continue  in  office  five  years,  unless  sooner 
removed  by  Congress  ;  any  three  of  whom  to  be  a  quo¬ 
rum  :  and  the  members  of  the  Council  shall  be  nomi¬ 
nated  and  appointed  in  the  following  manner,  to  wit : 
As  soon  as  Representatives  shall  be  elected,  the  Gover¬ 
nor  shall  appoint  a  time  and  place  for  them  to  meet  to¬ 
gether,  and  when  met,  they  shall  nominate  ten  persons, 
residents  in  the  District,  and  each  possessed  of  a  freehold 
in  five  hundred  acres  of  land,  and  return  their  names  to 
Congress  ;  five  of  whom  Congress  shall  appoint  and  com¬ 
mission  to  serve  as  aforesaid  :  and  whenever  a  vacancy 
shall  happen  in  the  Council,  by  death  or  removal  from 
office,  the  House  of  Representatives  shall  nominate  two 
persons,  qualified  as  aforesaid,  for  each  vacancy,  and 
return  their  names  to  Congress  ;  one  of  whom  Congress 
shall  appoint  and  commission  for  the  residue  of  the  term  : 
And  every  five  years,  four  months  at  least  before  the  ex¬ 
piration  of  the  time  of  service  of  the  members  of  Council, 
the  said  House  shall  nominate  ten  persons,  qualified  as 
aforesaid,  and  return  their  names  to  Congress  ;  five  of 
whom  Congress  shall  appoint  and  commission  to  serve  as 
members  of  the  Council  five  years,  unless  sooner  removed. 
And  the  Governor,  Legislative  Council,  and  House  of 
Representatives,  shall  have  authority  to  make  laws,  in  all 
cases,  for  the  good  government  of  the  District,  not  repug¬ 
nant  to  the  principles  and  articles  in  this  Ordinance  estab¬ 
lished  and  declared.  And  all  bills,  having  passed  by  a  ma¬ 
jority  in  the  House,  and  by  a  majority  in  the  Council,  shall 
be  referred  to  the  Governor  for  his  assent  ;  but  no  bill 
or  legislative  act  whatever,  shall  be  of  any  force  without 
his  assent.  The  Governor  shall  have  power  to  convene. 


334 


APPENDIX. 


prorogue,  and  dissolve,  the  General  Assembly,  when  in 
his  opinion  it  shall  be  expedient. 

The  Governor,  Judges,  Legislative  Council,  Secreta¬ 
ry,  and  such  other  officers  as  Congress  shall  appoint  in  the 
District,  shall  take  an  oath  or  affirmation  of  fidelity,  and 
of  office  ;  the  Governor  before  the  President  of  Congress, 
and  all  other  officers  before  the  Governor.  As  soon  as  a 
Legislature  shall  be  formed  in  the  District,  the  Council  and 
House  assembled,  in  one  room,  shall  have  authority,  by 
joint  ballot,  to  elect  a  Delegate  to  Congress,  who  shall 
have  a  seat  in  Congress,  with  a  right  of  debating,  but  not 
of  voting  during  this  temporary  government. 

And  for  extending  the  fundamental  principles  of  civil 
and  religious  liberty,  which  form  the  basis  whereon  these 
republics,  their  laws,  and  constitutions,  are  erected  ;  to 
fix  and  establish  those  principles  as  the  basis  of  all  laws, 
constitutions,  and  governments,  which  forever  hereafter 
shall  be  formed  in  the  said  Territory  ;  to  provide,  also,  for 
the  establishment  of  States,  and  permanent  government 
therein,  and  for  their  admission  to  a  share  in  the  Federal 
councils  on  an  equal  footing  with  the  original  States,  at  as 
early  periods  as  may  be  consistent  with  the  general  inter¬ 
est  : 

It  is  hereby  ordained  and  declared,  by  the  authority 
aforesaid,  That  the  following  Articles  shall  be  considered 
as  articles  of  compact,  between  the  original  States  and 
the  People  and  States  in  the  said  Territory,  and  forever 
remain  unalterable,  unless  by  common  consent,  to  wit  : 

Art.  1.  No  person,  demeaning  himself  in  a  peaceable 
and  orderly  manner,  shall  ever  be  molested  on  account 
of  his  mode  of  worship  or  religious  sentiments,  in  the 
said  Territory. 

Art.  2.  The  inhabitants  of  the  said  Territory  shall  al¬ 
ways  be  entitled  to  the  benefits  of  the  writ  of  habeas 
corpus,  and  of  the  trial  by  jury  ;  of  a  proportionate  rep¬ 
resentation  of  the  people  in  the  Legislature,  and  of  judi¬ 
cial  proceedings  according  to  the  course  of  the  common 
law.  All  persons  shall  be  bailable,  unless  for  capital  of¬ 
fences,  where  the  proof  shall  be  evident,  or  the  presump¬ 
tion  great.  All  fines  shall  be  moderate  ;  and  no  cruel 


AN  ORDINANCE. 


335 


or  unusual  punishment  shall  be  inflicted.  No  man  shall 
be  deprived  of  his  liberty  or  property,  but  by  the  judge¬ 
ment  of  his  peers,  or  the  law  of  the  land,  and  should  the 
public  exigencies  make  it  necessary,  for  the  common 
preservation,  to  take  any  person’s  property,  or  to  demand 
his  particular  services,  full  compensation  shall  be  made 
for  the  same.  And,  in  the  just  preservation  of  rights  and 
property,  it  is  understood  and  declared,  that  no  law  ought 
ever  to  be  made,  or  have  force  in  the  said  Territory, 
that  shall,  in  any  manner  whatever,  interfere  with,  or  af¬ 
fect,  private  contracts  or  engagements,  bona  fide,  and 
without  fraud,  previously  formed. 

Art.  3.  Religion,  morality,  and  knowledge,  being 
necessary  to  good  government  and  the  happiness  of  man¬ 
kind,  schools  and  the  means  of  education  shall  forever 
be  encouraged.  The  utmost  good  faith  shall  always  be 
observed  towards  the  Indians  ;  their  lands  and  property 
shall  never  be  taken  from  them  without  their  consent ; 
and  in  their  property,  rights,  and  liberty,  they  never  shall 
be  invaded  or  disturbed,  unless  in  just  and  lawful  wars 
authorized  by  Congress  ;  but  laws  founded  in  justice  and 
humanity  shall,  from  time  to  time,  be  made,  for  preven¬ 
ting  wrongs  being  done  to  them,  and  for  preserving  peace 
and  friendship  with  them. 

Art.  4.  The  said  Territory,  and  the  States  which  may 
be  formed  therein,  shall  forever  remain  a  part  of  this 
Confederacy  of  the  United  States  of  America,  subject  to 
the  articles  of  Confederation,  and  to  such  alterations 
therein  as  shall  be  constitutionally  made  ;  and  to  all  the 
acts  and  ordinances  of  the  United  States  in  Congress  as¬ 
sembled,  conformable  thereto.  The  inhabitants  and  set¬ 
tlers  in  the  said  Territory  shall  be  subject  to  pay  a  part 
of  the  Federal  debts,  contracted  or  to  be  contracted,  and 
a  proportional  part  of  the  expenses  of  government,  to  be 
apportioned  on  them  by  Congress,  according  to  the  same 
common  rule  and  measure  by  which  apportionments 
thereof  shall  be  made  on  the  other  States  ;  and  the  taxes 
for  paying  their  proportion,  shall  be  laid  and  levied  by 
the  authority  and  direction  of  the  Legislatures  of  the  Dis¬ 
trict  or  Districts,  or  new  States,  as  in  the  original  States, 


336 


APPENDIX. 


within  the  time  agreed  upon  by  the  United  States  in  Con¬ 
gress  assembled.  The  Legislatures  of  those  Districts, 
or  new  States,  shall  never  interfere  with  the  primary  dis¬ 
posal  of  the  soil  by  the  United  States  in  Congress  assem¬ 
bled,  nor  with  any  regulations  Congress  may  find  neces¬ 
sary,  for  securing  the  title  in  such  soil,  to  the  bona  fide  pur¬ 
chasers.  No  tax  shall  be  imposed  on  lands  the  property 
of  the  United  States  ;  and  in  no  case  shall  non-resident 
proprietors  be  taxed  higher  than  residents.  The  navi¬ 
gable  waters  leading  into  the  Mississippi  and  St.  Law¬ 
rence,  and  the  carrying  places  between  the  same,  shall 
be  common  highways,  and  forever  free,  as  well  to  the 
inhabitants  of  the  said  Territory,  as  to  the  citizens  of  the 
United  States,  and  those  of  any  other  States  that  maybe 
admitted  into  the  Confederacy,  without  any  tax,  impost, 
or  duty  therefor. 

Art.  5.  There  shall  be  formed  in  the  said  Territory, 
not  less  than  three,  nor  more  than  five  States  ;  and  the 
boundaries  of  the  States,  as  soon  as  Virginia  shall  alter 
her  act  of  cession,  and  consent  to  the  same,  shall  become 
fixed  and  established  as  follows,  to  wit  :  the  western 
State  in  the  said  Territory,  shall  be  bounded  by  the  Mis¬ 
sissippi,  the  Ohio,  and  Wabash  rivers  ;  a  direct  line 
drawn  from  the  Wabash  and  Post  Vincents,  due  north, 
to  the  Territorial  line  between  the  United  States  and  Can¬ 
ada  ;  and  by  the  said  Territorial  line  to  the  lake  of  the 
Woods  and  Mississippi.  The  middle  States  shall  be 
bounded  by  the  said  direct  line,  the  Wabash,  from  Post 
Vincents  to  the  Ohio,  by  the  Ohio,  by  a  direct  line  drawn 
due  north  from  the  mouth  of  the  Great  Miami  to  the  said 
Territorial  line,  and  by  the  said  Territorial  line.  The 
eastern  State  shall  be  bounded  by  the  last  mentioned  direct 
line,  the  Ohio,  Pennsylvania,  and  the  said  Territorial  line: 
provided  however,  and  it  is  further  understood  and  declar¬ 
ed,  that  the  boundaries  of  these  three  States  shall  be  sub¬ 
ject  so  far  to  be  altered,  that,  if  Congress  shall  hereafter 
find  it  expedient,  they  shall  have  authority  to  form  one  or 
two  States  in  that  part  of  the  said  Territory  which  lies  north 
of  an  east  and  west  line  drawn  through  the  southerly  bend 
or  extreme  of  lake  Michigan.  And  whenever  any  of  the 


AN  ORDINANCE. 


337 


said  States  shall  have  sixty  thousand  free  inhabitants  there¬ 
in,  such  State  shall  be  admitted,  by  its  delegates,  into  the 
Congress  of  the  United  States,  on  an  equal  footing  with  the 
original  States,  in  all  respects  whatever  ;  and  shall  be  at 
liberty  to  form  a  permanent  Constitution  and  State  gov¬ 
ernment  ;  provided  the  Constitution  and  government,  so 
to  be  formed,  shall  be  republican,  and  in  conformity  to 
the  principles  contained  in  these  Articles  ;  and,  so  far  as 
it  can  be  consistent  with  the  general  interest  of  the  Con¬ 
federacy,  such  admission  shall  be  allowed  at  an  earlier 
period,  and  when  there  may  be  a  less  number  of  free  in¬ 
habitants  in  the  State  than  sixty  thousand. 

Art.  6.  There  shall  be  neither  slavery  nor  involun¬ 
tary  servitude  in  the  said  Territory,  otherwise  than  in  the 
punishment  of  crimes,  whereof  the  party  shall  have  been 
duly  convicted  :  provided  always,  that  any  person  escap¬ 
ing  into  the  same,  from  whom  labor  or  service  is  lawfully 
claimed  in  any  one  of  the  original  States,  such  fugitive 
may  be  lawfully  reclaimed,  and  conveyed  to  the  person 
claiming  his  or  her  labor  or  service  as  aforesaid. 

Be  it  ordained  by  the  authority  aforesaid,  That  the 
resolutions  of  the  23d  of  April,  1784,  relative  to  the 
subject  of  this  Ordinance,  be,  and  the  same  are  hereby 
repealed  and  declared  null  and  void.  Done,  &c. 


29 


XIII. 


A  GLOSSARY 


OP  THE  LEGAL  AND  OTHER  NOT-EASILY-UNDERSTOOD  WORDS 

AND  PHRASES. 

A  fortiori,  literally,  for  the  stronger  ground,  or  reason. 

Allegiance,  the  tie,  or  duty,  which  binds  the  subject  or  citizen  of  a 
State  to  aid  and  assist  the  State,  or  Sovereignty,  in  return  for  the 
protection  afforded  by  the  latter.  It  imports,  therefore,  the  obliga¬ 
tion  of  a  subject,  or  citizen,  to  be  faithful  to  the  State. 

Ambassador ,  a  public  minister,  of  the  highest  grade,  sent  abroad  by  a 
sovereign  state,  or  prince,  to  transact  public  business  with  a  foreign 
government,  in  behalf  of  his  own.  There  are  three  grades  of  foreign 
ministers.  (1.)  Ambassadors,  who  have  the  highest  rank  and  privi¬ 
leges,  and  who  represent,  personally,  their  sovereign.  (2.)  Ministers 
Plenipotentiarxj,  who  have  full  powers  to  act  for  their  sovereign  or 
country.  (3.)  Ministers  Resident,  who  generally  possess,  or  may 
possess,  the  same  powers,  but  hold  a  subordinate  rank  to  Ministers 
Plenipotentiary.  The  explanation  of  the  peculiar  rights  and  duties 
of  each  class  belongs,  properly,  to  a  treatise  on  the  law  of  nations. 

Arrest,  the  seizure  and  detention  of  the  person  of  a  party,  by  a  public 
officer,  under  a  writ  or  process  from  some  court  or  magistrate. 
Thus,  when  a  sheriff  takes  a  man  in  custody,  under  a  writ,  we  say, 
the  sheriff  arrests  him,  or  he  is  under  arrest. 

Arrest  of  judgement,  an  order  of  a  court,  directing  that  no  judgement 
be  rendered  in  a  case,  from  an  error  of  law  in  the  proceedings. 

Articles  of  Confederation,  the  form  of  a  general  government,  adopted 
by  the  States,  during  the  Revolution,  for  their  union.  It  was  framed 
by  the  Continental  Congress,  in  1778  ;  and  was  finally  adopted,  by 
all  the  States,  in  1781,  and  remained  in  force  until  the  present  Con¬ 
stitution  of  the  United  States  was  adopted,  in  1788.  The  articles 
will  be  found,  at  large,  in  the  Appendix  to  this  Volume,  pp.  279 — 
289. 

Autre  Droit,  in  the  right  of  another,  and  not  in  one’s  own  personal 
right.  Thus,  an  administrator  or  executor,  who  collects  a  debt  due 
to  the  estate  of  the  deceased  party,  receives  it  not  on  his  personal 
account,  but  in  the  right,  or  as  representative,  of  another. 

Bail ,  a  person,  who  becomes  surety  for  another’s  appearance  in  a 
court  of  justice,  to  answer  to  some  civil  suit,  or  criminal  accusa¬ 
tion  ;  and  usually,  also,  that  he  shall  abide  the  judgement  of  the 
court  thereon. 

Bailable,  literally,  where  bail  may  be  taken.  Thus,  a  suit  or  crimi¬ 
nal  accusation  is  said  to  be  bailable,  where  the  party  is  entitled,  after 
arrest,  to  be  discharged  on  giving  bail. 


340 


GLOSSARY. 


Bill.  This  word  has  various  senses,  according  to  the  things,  to  which 
it  is  applied.  It  may  be  generally  defined,  to  be  a  formal,  written 
Instrument.  When  we  speak  of  a  Bill  before  a  Legislature,  we  mean, 
a  written  Instrument,  containing  a  proposed  Law,  drawn  up  in  the 
proper  form.  When  the  Bill  is  said  to  be  passed  by  the  Legislature, 
we  mean,  that  it  has  received  the  final  assent  of  the  Legislature. 
When  the  Bill  is  passed,  and  is  approved  by  the  Executive,  or  oth- 
wise  becomes  a  Law,  we  call  it  an  Act,  or  Statute. 

Bill  of  Credit ,  a  written  Instrument,  which  contains  a  promise  or 
agreement  of  the  State  to  pay  or  allow  a  certain  sum  of  money  to 
the  bearer  or  holder  thereof.  It  is  issued  on  the  credit  of  the  State, 
and  is  designed  to  circulate  as  currency. 

Bill  of  Rights,  a  written  Instrument,  containing  a  public  declaration 
of  certain  general  rights  of  the  people,  which  are  held  fundamental 
to  their  security  and  protection. 

Bills  for  raising  Revenue.  These  are  written  Instruments,  contain¬ 
ing  laws  proposed  to  be  passed  by  the  Legislature,  to  create  a  reve¬ 
nue,  or  income,  to  the  Government  ;  such  as  a  Bill  to  lay  and  collect 
a  tax,  or  duty,  on  houses,  or  lands,  or  goods. 

Bona  fide,  a  phrase  borrowed  from  the  Latin  language,  and  literally 
meaning,  “  in  good  faith.”  We  commonly  apply  it  to  a  person,  who 
acts  honestly  and  conscientiously  in  doing  any  thing,  without  sus¬ 
pecting  or  knowing  it  to  be  wrong. 

Bottomry  Bond,  literally,  a  Bond  given  by  a  master  or  owner  of  a 
ship,  or  other  vessel,  pledging  the  bottom  of  the  vessel,  that  is,  the 
vessel  itself,  for  the  repayment  of  money  borrowed  upon  the  credit 
of  the  vessel,  and  payable  upon  the  contingency,  that  the  vessel  per¬ 
forms  the  voyage  specified  in  the  bond. 

Cabinet,  an  abbreviated  expression  for  Cabinet  Council,  meaning  the 
Ministers  of  the  State,  or  Heads  of  the  Departments  of  the  Govern¬ 
ment,  who  are  convened  by  the  Executive  Magistrate,  to  assist  and 
advise  him  in  the  Government.  Thus,  in  the  United  States,  we 
say,  the  Heads  of  the  Departments  of  State,  of  War,  of  the  Treas¬ 
ury,  of  the  Navy,  of  the  Post  Office,  and  of  the  Law,  (the  Attorney 
General,)  constitute  the  Cabinet,  that  is,  they  are  the  private  confi¬ 
dential  advisers  and  council  of  the  President. 

Cessio  Bonorum,  literally,  a  Cession  or  Transfer  of  the  Goods  or  Prop¬ 
erty  of  a  party.  It  is  a  phrase  derived  from  the  Roman  or  civil 
law,  and  means,  that  a  debtor  has  made  a  cession,  or  assignment,  of 
his  property,  for  the  benefit  of  his  creditors. 

Charter.  In  a  general  sense,  this  word  means  any  written  Instrument 
conferring  rights  or  creating  obligations,  from  the  Latin  w  ord  charta , 
paper  or  parchment,  on  which  something  is  written.  But,  in  legal  lan¬ 
guage,  a  Charter  usually  means  a  written  Instrument,  or  grant,  under 
the  public  seal  of  the  Government,  conferring  certain  rights,  privi¬ 
leges,  and  authorities,  of  a  public  nature,  upon  certain  citizens  or 
subjects.  Such  were  the  original  Charters  of  Government,  granted 
by  the  Crown  to  the  American  Colonies. 

Commission,  a  written  Document,  signed  by  the  Executive,  or  other 
proper  officer  of  the  Government,  conferring  an  authority,  or  appoint¬ 
ment  to  office,  on  some  person.  Commissions  to  public  officers. 


GLOSSARY. 


341 


appointed  by  the  President  of  the  United  States,  are  signed  hy  the 
President,  and  have  the  great  seal  of  the  United  States  annexed 
thereto.  To  commission,  is  to  give  or  grant  such  commission  to  the 
proper  party. 

Confederation ,  Articles  of,  see  Articles  of  Confederation. 

Consul ,  a  commercial  Agent  of  the  Government,  appointed  and  resi¬ 
dent  in  a  foreign  country,  to  attend  to  the  commercial  rights  and 
privileges  of  his  own  country,  and  its  citizens,  in  such  foreign 
country. 

Continental  Congress,  the  general  appellation  of  the  general  Congress 
or  Legislature,  in  which  all  the  States  of  the  Union  were  represent¬ 
ed,  hy  their  Delegates,  during  the  American  Revolution.  It  was 
called  ‘  Continental,’  as  being  for  the  whole  of  the  Continent  of 
America,  embraced  within  the  limits  of  the  United  States,  in  contra¬ 
distinction  to  a  Provincial  Congress,  which  was  the  Legislative  Body 
of  a  single  State,  Colony,  or  Province,  of  the  Union. 

Conveyance,  a  transfer,  in  writing,  by  one  person  to  another,  of  his 
right  and  title  to  land  or  other  property.  It  is  usually  by  an  Instru¬ 
ment  under  the  seal  of  the  person  making  the  transfer.  . 

Copyright,  the  right  of  an  Author  to  the  exclusive  publication  and  sale 
of  his  works,  for  the  period,  which  is  prescribed  by  law  for  its  con¬ 
tinuance,  upon  his  complying  with  the  requisites  of  law,  in  order  to 
secure  the  same. 

Crown.  This  word  is  used  as  equivalent  to  King,  Sovereign,  or  reign¬ 
ing  Monarch.  Thus,  we  say,  indifferently,  such  a  grant  was  made 
by,  or  such  a  power  exists  in,  the  Crown,  the  King,  or  the  Sov¬ 
ereign. 

Declaration  of  Independence,  the  Act  by  which  the  United  States 
severed  their  connexion  with  the  British  Crown.  It  may  be  found, 
at  length,  in  the  Appendix  to  this  Volume,  pp.  275 — 279. 

Declaration  of  Rights,  of  the  Continental  Congress,  a  declaration, 
published  October  14,  1774,  and  which  may  be  found,  at  length,  in 
the  Appendix  to  this  Volume,  pp.  271 — 274. 

Defendant,  the  person  against  whom  any  suit  is  brought  ;  but,  in  a 
more  limited  sense,  it  means  the  person,  against  whom  any  suit  is 
brought,  who  appears  in  court  to  defend,  or  contest,  the  suit. 

Duty  on  Tonnage,  a  tax  laid  on  ships  and  vessels,  in  proportion  to 
their  tonnage  ;  as,  for  example,  a  tax  of  six  cents  a  ton  on  the  ton¬ 
nage  of  every  American  ship,  or  a  tax  of  fifty  cents  a  ton  on  that  of 
every  foreign  ship,  arriving  in  the  ports  of  the  United  States. 

Embargo ,  a  restraint,  or  detainment,  of  ships  and  vessels,  from  sailing 
out  of  port,  imposed  by  the  authority  of  the  Government.  It  is  usu¬ 
ally  imposed  for  temporary  purposes,  in  contemplation  of  war,  or  on 
account  of  some  immediate  and  impending  public  danger. 

Equity.  This  word  is  commonly  used  as  equivalent  to  natural  jus¬ 
tice,  in  contradistinction  to  strict  Law.  In  the  Law,  it  is  used,  to 
express  the  jurisdiction,  which  belongs  to  Courts  of  Equity,  to  enforce 
rights  and  remedy  wrongs,  in  favor  of  parties  ;  which  rights  and 
wrongs  Courts  of  common  Law  have  no  authority  to  enforce  or  re¬ 
dress. 

Estate ,  the  right  and  interest,  which  a  man  has  in  property.  Real 

29* 


342 


GLOSSARY. 


Estate  is  the  right  and  interest,  which  a  man  has  in  land,  or  other 
things  of  a  kindred  and  permanent  nature  ;  such,  for  example,  as  an 
interest  in  a  mill,  in  a  waterfall,  or  in  a  private  way.  Personal 
Estate  is  the  right  or  interest,  which  a  man  has  in  goods,  merchan¬ 
dises,  and  other  movable  property,  or  debts  and  credits. 

Estoppel  is,  in  Law,  the  stopping,  or  precluding,  or  preventing,  a  man 
from  setting  up  any  fact,  or  previous  act,  to  contradict  or  invalidate, 
what  he  has  since  done  or  admitted.  Thus,  if  a  man  makes  a  con¬ 
veyance,  by  deed,  of  land,  stating  therein  that  he  has  a  good  title 
thereto,  he  shall  be  estopped  to  deny  that  he  had  any  title. 

Excise.  This  word  ordinarily  means  a  tax,  or  duty,  laid  upon  some 
commodity  or  thing  used,  or  manufactured,  or  sold,  in  a  country. 
Thus,  a  tax  laid  upon  all  coaches  used,  or  upon  all  spirits  manufac¬ 
tured,  or  upon  all  goods  sold  at  auction,  in  a  country,  is  called  an 
excise.  It  is  commonly  used  in  contradistinction  to  “  imposts,”  the 
latter  word  being  applied  to  taxes  levied  on  goods  upon  their  im¬ 
portation  from  a  foreign  country,  whereas  excises  are  taxes  on  things 
already  in  the  country,  or  to  be  sold  or  manufactured  there,  and  are 
therefore  commonly  called  “  internal  taxes.” 

Ex  post  facto,  literally,  after  the  act  is  done.  The  phrase  is  usually 
applied  to  laws  passed  to  punish  an  act  as  a  crime,  when  it  was  not 
so  at  the  time,  when  the  act  was  done.  Hence  such  laws  are  called 
Ex  post  facto  laws. 

Felony.  This  word  was  originally  applied  to  crimes,  which  the  com¬ 
mon  law  punished  by  a  forfeiture  of  the  lands  and  goods  of  the  of¬ 
fender,  it  being  supposed  to  be  derived  from  the  feudal  law,  in  which 
“fee”  signified  the  fief,  feud,  or  estate  of  the  tenant,  and  “  Ion,” 
which  signified  price  or  value.  It  is  now  commonly  applied  to  de¬ 
signate  such  crimes  as  are  punished  capitally,  that  is,  by  death. 

Franchise,  a  right  or  privilege,  granted  by  the  King  or  Government 
to  one  or  more  persons,  which  does  not  belong  to  subjects  or  citi¬ 
zens  generally  ;  and  which  cannot  properly  be  exercised  by  them, 
without  such  grant.  Thus,  to  be  and  act  as  a  corporation,  is  a  fran¬ 
chise. 

General  Issue,  a  law  phrase,  signifying  a  general  denial,  by  the  De¬ 
fendant  in  a  suit,  of  all  the  charges  made  by  the  Plaintiff’,  in  his 
written  statements,  or  allegations,  (commonly  called  a  declaration,) 
against  the  Defendant,  for  which  the  suit  is  brought.  Thus,  if  an 
action  is  brought  by  A  against  B,  for  an  assault  and  battery  of  A, 
and  B  pleads,  that  he  is  not  guilty,  this  is  called  the  general  issue  ; 
that  is,  the  Defendant  denies  the  whole  matter  charged  against  him. 
The  Reply  of  the  Plaintiff,  putting  the  matter  of  fact  on  trial,  by  the 
Jury,  is  called  joining  the  issue.  So,  where  a  party,  charged  with 
a  crime,  pleads  not  guilty,  that  is  the  general  issue. 

Grantee,  the  person  to  whom  a  grant  is  made.  The  person,  who 
makes  the  grant,  is  called  the  Grantor. 

Habeas  Corpus,  literally,  Have  you  the  Body.  The  phrase  designates 
the  most  emphatic  words  of  a  writ,  issued  by  a  Judge  or  Court, 
commanding  a  person,  who  has  another  in  custody,  or  in  imprison¬ 
ment,  to  have  his  body  (Habeas  Corpus)  before  the  Judge  or  Court, 
at  a  particular  time  and  place,  and  to  state  the  cause  of  his  imprison- 


GLOSSARY. 


343 


ment.  The  person,  whether  a  sheriff,  gaoler,  or  other  person,  is 
bound  to  produce  the  body  of  the  prisoner  at  the  time  and  place  ap¬ 
pointed  ;  and,  if  the  prisoner  is  illegally  or  improperly  in  custody, 
the  Judge  or  Court  will  discharge  him.  Hence  it  is  deemed  the 
great  security  of  the  personal  liberty  of  the  citizen  against  oppression 
and  illegal  confinement. 

Impeachment,  in  a  juridical  sense,  is  a  written,  formal  accusation  of  a 
person,  as  being  guilty  of  some  public  offence  or  misdemeanor. 
When  the  charges  against  him  are  specially  described  and  set  forth 
in  writing,  they  are  called  Articles  of  Impeachment.  When,  for 
example,  the  House  of  Representatives  of  the  United  States  prefers 
or  offers  to  the  Senate  written  charges,  against,  any  public  officer,  as 
being  guilty  of  high  crimes  and  misdemeanors,  on  which  it  requires 
him  to  be  put  upon  trial,  it  is  called  an  Impeachment. 

In  Capite,  literally,  in  chief,  or  of  the  head.  Tenants  in  capite,  are 
those  tenants  of  land,  who  hold  them  directly,  or  immediately,  from 
and  under  the  King,  by  his  gift  or  grant,  in  contradistinction  to  per¬ 
sons  who  hold  by  the  grant  of,  or  under,  other  persons. 

Indictment  is  a  formal  written  accusation,  by  a  Grand  Jury,  charging 
a  person  to  be  guilty  of  a  particular  crime  or  misdemeanor,  which  is 
particularly  described  and  set  forth  in  the  indictment. 

Infamous  crime.  This  phrase  means,  in  common  language,  a  crime, 
which  is  attended  with  infamy.  In  Law,  it  is  usually  applied  to  such 
gross,  or  atrocious  crimes,  as  involve  deep  moral  turpitude  and  dis¬ 
grace. 

Injunction ,  the  name  of  a  writ  or  process,  which  enjoins  or  commands 
a  man  to  do  or  not  to  do  a  particular  act  or  thing  ;  and  is  a  common 
process  issued  by  Courts  of  Equity,  in  proper  cases.  An  injunction 
of  a  judgement  is  an  order  to  the  part}',  who  has  obtained  a  judge¬ 
ment  in  a  suit,  not  to  enforce  that  judgement  by  an  execution,  or 
otherwise. 

Insolvency ,  an  inability  of  a  debtor  to  pay  all  his  debts.  Insolvent 
laws  are  such  as  are  made  for  the  relief  of  debtors  unable  to  pay  all 
their  debts. 

Ipso  facto,  literally,  by  this  very  act.  It  means,  that  a  certain  result 
immediately  follows  from  that  act.  Thus,  we  say,  if  a  man  conveys 
his  estate  to  another,  he  ceases,  ipso  facto,  (by  this  very  act,)  to  be 
the  owner  thereof. 

Jure  Belli,  literally,  by  the  law  or  right  of  war. 

Jurisprudence  is,  properly  speaking,  the  Science  of  the  Law,  in  which 
sense,  it  includes  all  the  principles  and  doctrines  of  the  Law.  The 
word  is  sometimes  used  in  a  more  limited  sense,  and  means  only  the 
expositions  and  interpretations  of  the  Law,  by  Judicial  Tribunals. 

Jury,  a  body  composed  of  twelve  men,  selected  to  try  questions  of 
fact  in  civil  and  criminal  suits,  and  who  are  under  oath  or  solemn 
affirmation,  to  decide  the  facts  truly  and  faithfully,  according  to  the 
evidence  laid  before  them.  The  points,  which  they  are  to  try,  are 
generally  founded  upon  the  written  allegations  of  the  parties,  (called 
the  pleadings,)  and  the  points,  on  which  the  parties  require  their  de¬ 
cision,  are  called  the  issues,  and  the  decisions  on  those  points  made 
by  the  jury,  after  hearing  the  case,  are  called  their  verdict,  or  find- 


344 


GLOSSARY. 


ing  of  the  truth  of  the  facts.  The  jury  for  the  trial  of  causes  is  some¬ 
times  called  the  'petit,  (or  small,)  or  traverse  jury ,  (that  is,  a  jury  to 
try  questions  of  fact,  which  are  traversed  or  denied  between  the 
parties. ) 

Jury,  Grand,  a  body  composed  of  not  less  than  twelve,  nor  more  than 
twenty-three  men,  who,  under  oath,  hear  the  proof  of  any  particular 
crime,  or  offence,  with  which  any  person  is  charged,  and  if  they 
believe  him  guilty  on  the  evidence,  they  present  an  indictment  against 
him. 

Law,  Civil.  The  phrase,  “  civil  law,”  sometimes  means  the  law, 
which  respects  the  private  rights  and  property  of  persons,  in  contradis¬ 
tinction  to  criminal  law,  which  respects  public  offences.  Sometimes, 
it  means  the  Roman  Law,  which  is  commonly  called  the  civil  law. 
Sometimes,  civil  law  is  used  in  contradistinction  to  military  law,  the 
latter  being  applicable  only  to  persons  in  the  military  or  naval  service. 

Law,  Common.  The  phrase,  “common  law,”  is  used,  in  England, 
to  express  all  the  doctrines  and  principles  of  Law,  which  are  recog¬ 
nised  and  enforced  in  its  jurisprudence,  and  are  not  founded  upon 
any  positive  existing  act  or  statute  of  Parliament.  It  consists  of  all 
the  general  customs  and  usages,  which  regulate  the  rights  of  proper¬ 
ty,  and  all  those  general  principles  of  justice  and  interpretation, 
which  are  acted  upon  in  Courts  of  Justice,  and  all  those  remedies, 
which  are  applied  for  the  redress  of  wrongs,  which  cannot  be  traced 
up  to  any  positive  act  or  statute.  The  phrase,  “  common  law,” 
is  sometimes  used  to  distinguish  the  English  law  from  the  Roman, 
which  is  commonly  called  the  “  civil  law  ;”  and  sometimes  merely 
to  express* that  it  is  the  law  applicable,  in  common  to  the  whole 
kingdom.  The  common  Law  of  each  of  the  American  States  is 
that  portion  of  the  English  common  Law,  which  has  been  adopted  by 
the  particular  State,  in  connexion  with  its  own  peculiar  and  settled 
usages  and  customs,  and  which  is  not  prescribed  by  any  act  or  statute 
of  the  State  Legislature. 

Laiv,  Constitutional.  Constitutional  Law  is  that  branch  of  the  Law, 
which  relates  to  the  exposition  and  interpretation  of  the  Constitution 
of  the  State  or  Nation. 

Law,  Merchant.  That  branch  of  the  Laws  of  a  State  or  Nation,  which 
treats  of  rights,  duties,  contracts,  &c.,  respecting  trade,  and  com¬ 
merce,  and  navigation,  and  shipping,  and  sales,  and  insurance,  and 
bills  of  exchange,  and  promissory  notes,  &c.  &c. 

Law,  Municipal.  Municipal  Law  means  the  law  of  a  particular  com¬ 
munity,  State,  or  Nation,  in  contradistinction  to  the  law  of  foreign 
communities,  States,  or  Nations. 

Law  of  Nations.  The  Law  of  Nations  is  properly  that,  which  regu¬ 
lates  the  rights  and  duties  of  Nations,  in  respect  to  each  other,  and 
the  respective  subjects  and  citizens  thereof.  That  branch,  which 
respects  the  rights  and  intercourse  of  the  Nations,  in  their  sovereign 
capacities,  is  often  called  public  international  law  ;  that,  which  re¬ 
spects  the  private  rights  and  intercourse  of  the  respective  subjects  and 
citizens  thereof,  is  called  private  international  law. 

Laivs,  Insolvent.  Laws  made  respecting  debtors,  who  are  unable  to 
pay  their  debts,  and  distributing  their  property  among  their  creditors. 


GLOSSARY. 


345 


Laws ,  Inspection.  Inspection  laws  are  such  laws  as  are  made  by  a 
particular  State,  to  ascertain  and  fix  the  quality,  character,  and  rela¬ 
tive  value,  of  its  own  products  or  manufactures.  In  order  to  ascer¬ 
tain  these  facts,  the  products  or  manufactures  are  examined,  or  in¬ 
spected,  by  skilful  persons,  who  are  often  called  inspectors  ;  as,  for 
example,  inspectors  of  provisions,  inspectors  of  flour,  inspectors  of 
ashes,  &c. 

Letters  of  Marque  and  Reprisal.  These  are  letters  under  seal,  or 
commissions,  granted  by  a  government  to  one  or  more  of  its  citizens, 
to  make  seizure  or  reprisal  of  the  property  of  an  enemy,  or  of  per¬ 
sons,  who  belong  to  another  government,  which  government  has  re¬ 
fused  to  do  justice  to  the  citizens  of  the  country  granting  the  letters 
of  marque  and  reprisal. 

Magna  Charta ,  or  Magna  Carta,  literally,  the  Great  Charter.  This 
name  is  given  to  a  formal  written  charter,  granted  by  King  John,  and 
confirmed  by  King  Henry  III.,  of  England,  which  solemnly  recog¬ 
nised  and  secured  certain  enumerated  rights,  privileges,  and  liberties, 
as  belonging  to  the  people  of  England,  which  have  ever  since  con¬ 
stituted  a  fundamental  part  of  the  constitution  or  government  of 
England.  Among  other  important  rights,  it  secured  the  right  of  a 
trial  by  jury  in  civil  and  criminal  cases,  and  the  right  of  the  subject 
to  the  free  enjoyment  of  his  life,  his  liberty,  and  his  property,  un¬ 
less  declared  forfeited  by  the  judgement  of  his  peers,  (a  jury,)  or 
by  the  Law  of  the  land.  Several  of  its  provisions  constitute  a  part 
of  the  Bill  of  Rights  set  forth  in  our  present  State  and  National  Con¬ 
stitutions.  « 

Malversations  in  Office.  This  phrase  is  applied  to  official  misdemean¬ 
ors,  corruptions,  extortions,  and  other  wrongful  conduct,  by  public 
officers. 


Mandamus,  literally,  “  we  command.”  This  is  a  writ  issued  by  a 
Court  of  Justice  to  some  Corporation,  public  officer,  or  other  person, 
commanding  them  to  do  some  particular  thing,  therein  specified, 
which  appertains  to  their  office  or  duty.  It  is  called  a  Mandamus, 
from  this  word  being  in  the  original  writ,  which  was  formerly  in 
Latin. 

Material  Men.  Those  persons  are  called,  in  Admiralty  Courts,  ma¬ 
terial  men,  who  supply  ships  with  provisions,  or  equipments,  or  other 
outfits,  or  furnish  materials  for  repairs,  and  make  the  repairs  on  ships. 

Mesne  Process,  literally,  intermediate  process,  as  contradistinguished 
from  final  process,  in  any  suit.  In  strictness,  the  writ  first  issued, 
to  bring  a  party  before  a  court,  in  a  suit,  is  called  original  process  ; 
the  writ  of  execution,  which  issues  to  enforce  the  judgement  in  the 
suit,  is  called  the  final  process  ;  and  all  other  process  or  writs,  is¬ 
sued  in  that  suit,  are  mesne  process.  But,  in  America,  mesne  pro¬ 
cess  is  ordinarily  used  to  describe  all  process  issued  in  a  suit,  which 
is  not  final  process. 

Ministers  Plenipotentiary,  )  0  „  ,  , 

Ttr-  ■  .  r,  .  /  ,  ?  kee  Ambassadors. 

Ministers  Resident.  } 

Ordinance  of  1787,  for  the  settlement  and  government  of  the  North- 
Western  Territory  of  the  United  States,  may  be  found,  at  length,  in 
the  Appendix  to  this  Volume,  pp.  329 — 337. 


346 


GLOSSARY. 


Parliament.  This  is  the  appellation,  by  which  the  Legislature  of 
Great  Britain  is  ordinarily  designated.  It  is  composed  of  the  House 
of  Lords,  and  House  of  Commons. 

Patent,  an  abbreviated  expression,  signifying  letters-patent,  or  open 
letters,  or  grants  of  the  government,  under  the  great  seal  thereof, 
granting  some  right,  privilege,  or  property,  to  a  person,  who  is  thence 
called  the  Patentee.  Thus,  the  government  grants  the  public  lands, 
by  a  patent,  to  the  purchaser.  So,  a  copy-right  in  a  book,  or  an  ex¬ 
clusive  right  to  an  invention,  is  granted  by  a  patent.  When  the 
word  patent  is  used  in  conversation,  it  ordinarily  is  limited  to  a  pa- 
tent-right  for  an  invention. 

Patentee.  The  party,  who  is  the  grantee  of  a  patent  from  the  govern¬ 
ment. 

Peers.  Peers,  ordinarily,  means  the  nobility  of  Great  Britain,  who 
have  a  seat  in  the  House  of  Lords.  They  are  called  peers,  from  the 
Latin  word,  pares ,  equals.  But  the  word  is  also  used  to  signify, 
the  pares,  or  jurymen,  who  are  entitled  to  try  questions  of  fact  in 
civil  and  criminal  cases.  The  trial  by  jury  is  therefore  often  called 
a  trial  by  his  (the  defendant’s)  peers. 

Personal  Estate.  See  Estate. 

Plaintiff,  the  party,  who  brings  a  suit  against  another,  for  redress  of 
some  private  wrong  or  breach  of  contract.  He  is  so  called,  be¬ 
cause  he  makes  a  plaint  or  complaint  against  the  wrongdoer. 

Plea,  the  written  defence  of  the  Defendant  in  any  suit,  in  denial  or 
avoidance  of  the  matter  charged  by  the  Plaintiff  in  that  suit  against 
him. 

Plea ,  Special.  It  is  a  special  justification  or  excuse,  set  forth  in  writing 
by  the  Defendant  in  a  suit,  which  bars  or  destroys  the  Plaintiff’s  right 
in  that  suit.  It  is  used  in  contradistinction,  generally,  to  the  general 
issue.  A  justification  admits  the  act  charged  by  the  Plaintiff  to  be 
done  or  omitted,  and  justifies  the  Defendant  in  such  act  or  omission. 
Whereas  the  general  issue  usually  denies,  that  the  act  has  ever  been 
done  or  omitted. 

Plurality  of  Votes.  A  person  is  said  to  have  a  plurality  of  votes,  who 
has  more  votes  than  any  other  single  candidate  for  the  same  office. 
A  person  is  said  to  have  a  majority  of  votes,  who  has  a  larger  num¬ 
ber  than  all  the  other  candidates  have,  adding  all  their  votes  together. 

Prima  facie  means,  literally,  upon  the  first  view  or  appearance.  It 
is  commonly  applied  to  cases  of  evidence  or  presumption,  where  the 
meaning  is,  that  the  evidence  or  presumption  is  to  be  taken  to  be 
sufficient  to  prove  certain  facts,  until  other  evidence  or  presumptions 
are  introduced  to  control  it. 

Prison  Liberties,  or  Gaol  Limits.  To  every  public  gaol  or  prison, 
there  are  certain  limited  spaces,  or  local  limits,  outside  of  the  walls 
of  the  gaol  or  prison,  within  which  persons  imprisoned  for  debts  are 
entitled  to  reside,  or  be,  upon  complying  with  the  conditions  and  se¬ 
curities  required  to  be  given,  that  they  will  commit  no  escape.  These 
limits,  or  liberties,  are  commonly  called  the  gaol  or  prison  limits  or 
liberties. 

Privies,  in  a  legal  sense,  are  those,  who  claim  any  right  or  property 
from  or  under  another  person.  Thus,  the  heir,  or  devisee,  of  an  an- 


GLOSSARY. 


347 


cestor,  is  a  privy  under  the  latter.  An  executor  is  a  privy  under  his 
intestate.  A  purchaser  is  a  privy  in  estate  from  the  seller. 

Process  of  Law.  Process  means  the  writs  and  other  compulsive  writ¬ 
ten  orders,  issued  in  any  civil  or  criminal  case,  to  compel  the  appear¬ 
ance  of  a  party  or  witness,  or  to  enforce  obedience  to  the  judgement, 
or  other  order  of  a  court  of  justice. 

Property  in  Contingency ,  is  property,  to  which  there  is  no  absolute 
right  or  title  in  a  party,  but  its  vesting  in  him  is  dependent  upon  a 
future  uncertain  event.  Thus,  a  legacy  to  a  man,  who  is  under  age, 
if  he  arrives  at  twenty-one  years,  is  property  in  contingency. 

Proprietary.  This  phrase  is  equivalent  to  owner  or  proprietor.  But 
it  is  usually  limited  to  persons,  who  possess  a  right  to  territory,  with 
the  powers  of  government  therein.  Thus,  Penn  was  called  the  Pro¬ 
prietary  of  Pennsylvania,  and  Lord  Baltimore,  of  Maryland;  because, 
by  grants  from  the  King  of  England,  not  only  the  territory  of  those 
Colonies,  but  the  right  of  governing  them,  was  vested  in  them. 

Pro  tempore ,  literally,  for  a  time.  It  means,  that  a  person  is  not  the 
regular  officer  holding  an  office,  but  one  holding  it  for  a  short  and 
uncertain  period.  Thus,  the  Vice  President  of  the  United  States  is 
the  regular  President  of  the  Senate  ;  but,  in  his  absence,  the  Senate 
may  appoint  a  President,  pro  tempore ,  to  perform  his  duties. 

Provincial  Congress ,  see  Continental  Congress. 

Real  Estate ,  see  Estate. 

Records  of  a  Court.  These  are  the  written  memorials  of  the  trans¬ 
actions  of  a  court  of  justice,  drawn  up  in  form  by  its  regular  officers, 
and  styled  records,  because  the  acts  and  doings  of  the  Court  are 
therein  recorded  fully  and  truly,  so  as  to  be  received  as  absolutely 
correct. 

Replication  is  the  written  reply  of  the  Plaintiff  in  a  suit,  to  the  plea 
put  in  by  the  Defendant  in  the  same  suit.  Its  true  object  is,  to  deny 
or  destroy  the  validity  of  the  plea,  as  a  bar  to  the  suit. 

Reprieve.  When  a  criminal  has  been  condemned,  by  the  sentence  of 
a  court  of  justice,  to  suffer  a  particular  punishment  at  a  particular 
time,  and  the  execution  of  that  sentence  is  postponed,  suspended,  or 
withdrawn,  for  an  interval  of  time,  by  the  proper  authority,  it  is  cal¬ 
led  a  reprieve  ;  from  reprendre ,  to  take  back. 

Return-Day  of  Process.  Whenever  a  writ  or  process  is  issued  by  a 
court  of  justice,  to  an  officer,  or  other  person,  to  be  by  him  executed, 
according  to  the  command  therein  stated,  it  usually  contains  a  fixed 
time,  when  the  officer  is  to  make  a  return  of  that  writ  or  process,  with 
a  written  statement  of  his  acts  or  proceedings  done  under  it.  That 
time  is  the  return-day  ;  and  that  written  statement  is  technically  cal¬ 
led  his  Return. 

Right,  Possessory.  A  man,  who  is  in  possession  of  property,  having  a 
right  to  possess  it,  is  said  to  have  a  possessory  right.  Thus,  a  man, 
who  hires  a  horse  and  chaise  for  a  journey,  has  a  possessory  right  to 
the  horse  and  chaise  for  that  journey,  although  the  person,  who  lets 
them,  is  the  general  owner.  So  a  man  in  possession  of  land,  as  a 
tenant,  has  a  possessory  right  in  the  land,  although  it  is  owned  by 
his  landlord. 

Sergeant-at-Arms.  The  name  of  the  officer  of  a  legislative  body,  who 


348 


GLOSSARY. 


serves  processes,  and  executes  the  orders  of  that  body  upon  solemn 
occasions. 

Socage,  a  word  of  feudal  origin,  and,  in  that  system,  the  tenure,  by 
which  a  man  holds  lands,  is  to  render  therefor  some  certain  and  de¬ 
terminate  service,  in  contradistinction  to  tenure  of  lands  by  uncertain 
and  precarious  services,  where  the  tenant  was  obliged  to  render  such 
service  as  the  grantor  might,  from  time  to  time,  require  of  him.  Free 
Socage  is  a  tenure  by  certain  and  honorable  service. 

Stamp  Act.  An  act  or  statute,  which  requires  certain  papers  and 
enumerated  documents  to  be  stamped  with  a  stamp  by  the  govern¬ 
ment,  before  they  have  any  validity  ;  and  imposes  a  certain  tax  or 
duty  for  the  stamping  such  papers  or  documents.  Thus,  if  the  gov¬ 
ernment  should  declare,  that  every  deed  or  promissory  note  should 
be  written  on  paper  stamped  by  the  government,  and  require  the 
party  to  pay  a  fixed  sum  or  tax  for  such  stamped  paper,  the  Act  or 
Law,  making  such  provisions,  would  be  called  a  Stamp  Act. 

Stand  seised.  A  man  is  said  to  stand  seised  of  land,  who  is  in  posses¬ 
sion  of  it  under  a  claim  or  title  to  it,  either  in  fee,  or,  at  least,  for  life. 

State  Trials  are  trials  for  crimes  or  offences  in  Courts  of  justice. 
They  are  called  State  trials,  because  the  State  or  Government  prose¬ 
cutes  the  suit  or  indictment. 

Statute.  An  act  or  law,  passed  by  a  Legislature.  It  is  called  a 
Statute,  from  Statutum,  a  thing  ordered  or  appointed  by  the  Legis¬ 
lature. 

Statute  of  Limitations.  A  statute  or  law,  which  limits  the  time  with¬ 
in  which  a  suit  or  action  may  be  brought  in  a  court  of  justice.  Such 
statutes  exist  in  every  State  in  the  Union. 

Suit  at  Law  is  the  remedy,  which  a  person,  aggrieved  by  any  wrong 
done  to  him,  seeks,  in  a  court  of  law,  for  redress  of  the  wrong. 

Tonnage  Duty  is  a  tax  or  duty  laid  by  the  Legislature,  or  other  com¬ 
petent  authority,  upon  ships  or  vessels,  in  proportion  to  their  tonnage. 

Tort  is  a  wrong  or  injury  done  by  one  man  to  another,  or  to  his  prop¬ 
erty  or  rights.  It  includes  all  trespasses  ;  but  is  a  word  of  larger 
signification. 

Treaty  of  Peace,  of  1783,  is  the  treaty  made  between  Great  Britain 
and  the  American  States,  by  which  Great  Britain  acknowledged  our 
Independence,  and  surrendered  her  claims  to  our  Territory.  It 
closed  the  War  for  our  Independence  ;  and  will  be  found  in  the  Ap¬ 
pendix  to  the  present  Volume,  pp.  324 — 329. 

Trespass  is  a  wrong  or  injury  done  by  one  man  to  another,  or  to  his 
property  or  rights.  When  the  word  is  used,  alone,  it  means  some 
wrong  done  by  violence,  or  force,  or  some  illegal  act.  Thus,  if  a 
man  unlawfully  strikes  another,  or  unlawfully  takes  possession  of 
the  land  or  goods  of  another,  he  is  said  to  be  guilty  of  a  trespass. 

V.  is  often  put  for  versus ,  or  against.  Thus,  a  suit  is  said  to  be  by 
A  versus  B. 

Viva  Voce,  literally,  by  the  living  voice,  or  orally.  Thus,  when  a 
witness  gives  his  testimony  in  open  court,  in  the  presence  of  the  au¬ 
dience,  and  answers,  by  word  of  mouth,  we  say,  his  testimony  is 
viva  voce.  If  his  testimony  is  written  down,  and  read,  it  is  called 
his  Deposition. 


GLOSSARY. 


349 


Warrant  is  a  written,  sealed  order,  command,  or  writ,  requiring  and 
authorizing  an  officer  or  other  person  to  do  a  particular  act.  It  is 
usually  applied  to  the  process,  by  which  criminals  are  arrested  for 
trial  or  examination. 

Writ  of  Error  is  a  writ,  which  authorizes  a  Court  of  justice  to  bring 
a  record  before  it,  either  of  the  same  court,  or  of  another  court,  in 
order  to  examine  and  decide,  whether  there  is  any  error  of  law  in 
the  judgement,  or  other  proceedings  in  that  record  ;  and,  if  there  be, 
to  correct  the  error. 

Writ  of  Habeas  Corpus,  see  Habeas  Corpus. 

30  xiii. 


/ 


INDEX 


A. 

Absent  members  of  Congress, 
compelled  to  attend, 90, 91, 292. 

Absolute  governments,  the  pow¬ 
ers  of,  46. 

Account  of  the  receipts  and  expen¬ 
ditures  of  all  public  money,  to 
be  published,  144,  145,  296. 

Accusation,  self,  criminals  not 
bound  to,  230,  233,  304. 

Accused,  incases  of  impeachment, 
86.  Privileges  to  the,  230— 
234,  304.  Not  bound  to  testi¬ 
fy  against  themselves,  230,  233, 
304.  Examination  of  witnesses 
against  the,  231,  235,  304. 
Counsel  for,  231,  236,  304. 
Confessions  of,  241. 

Acts,  public,  of  the  States,  faith  to 
be  given  to,  135,  301. 

Adams,  John,  Vice-President  of 
the  United  States,  34.  Various 
offices  held  by,  325.  Minister 
Plenipotentiary  for  the  conclud¬ 
ing  and  signing  the  Definitive 
Treaty  of  Peace,  between  the 
United  States  of  America  and 
his  Britannic  Majesty,  in  1783, 
325,  329. 

Adjournment  of  Congress,  92, 
292.  Bills  not  approved  by  the 
President  at  the  time  of,  98, 
100,  293. 

Admiralty  and  maritime  jurisdic¬ 
tion,  jurisdiction  of  the  Supreme 
Court  in  cases  of,  186,  187, 
194,  196,  221,  300. 

Admission  of  New  States  into  the 
Union,  137,  301,  307. 

Afiirmation,  substitution  of,  for 
oath,  252,  298,  303. 

Age,  of  Representatives,  54,  73, 


289.  Of  Senators,  73,  291 
Of  President  and  Vice-Presi¬ 
dent,  167,  298. 

Agreements  between  States,  for¬ 
bidden, 156, 296.  See  Alliances. 

Alexandria,  meeting  of  commis¬ 
sioners  at,  in  1785,  33. 

Aliens,  suits  by  and  against,  in  the 
courts  of  the  United  States, 
211,  300.  See  Foreigners. 

Alliances,  States  forbidden  to 
make,  146,  296.  Washington, 
on  domestic,  313  ;  on  foreign, 
321.  See  Agreements,  and 
Combination. 

Ambassadors,  appointment  of, 
172,  173,  299.  To  be  received 
by  the  President,  176,  299. 
Suits  by  and  against,  186,  192, 
213,  221,  223,  300. 

Amendments  to  the  Constitution, 
161,  303.  On  the  election  of 
President  and  Vice-President, 

161.163.305.  On  suits  by  and 
against  the  States,  203,  205, 

216.305.  On  the  appellate  ju¬ 
risdiction  of  the  Supreme  Court, 
both  as  to  law  and  fact,  225, 
304.  On  trial  by  jury,  230, 
304.  On  search-warrants,  237, 
303.  On  excessive  bail,  fines, 
and  punishments,  237,238, 304. 
Mode  of  making,  246,  302.  Re¬ 
specting  religious  tolerance, 254, 
303.  Articles  of,  303. 

American,  Washington  on  the 
name,  310. 

American  Colonies,  history  of  the, 
11.  Their  title  to  the  soil,  13. 
Times  and  manner  of  the  settle¬ 
ment  of  the,  15.  Governments 
of  the,  17.  Rights  and  privi- 


352 


INDEX. 


leges  of  the,  19.  Legislative 
powers  of  the,  19.  Common 
law  of  England  introduced  into 
the,  20.  Political  state  of  the, 
at  the  time  of  the  Revolution, 
22.  Their  connexion  with  Great 
Britain  and  with  each  other,  22. 
Controversies  between  the,  de¬ 
termined  before  the  King  in 
council,  200.  Declaration  of 
Independence  of  the,  275. 

American  Revolution,  see  Revo¬ 
lution. 

Annapolis,  meeting  of  commission¬ 
ers  at,  in  1786,  33. 

Appellate  jurisdiction  of  the  Na¬ 
tional  Judiciary,  212,  300. 

Suggestions  respecting  it,  213— 
228.  Of  inferior  tribunals,  214, 
218.  On  the  exclusion  of,  by 
original  jurisdiction,  215.  Ex¬ 
tent  of  the,  217.  Meaning  of 
and  mode  of  exercising,  224. 
Qualified,  227,  304. 

Appointments  to  office,  power  of, 
172-175,  299.  By  the  Presi- 
ident,  172,  299.  By  Congress 
and  the  Heads  of  Departments, 
172,  174,  299.  When  discre¬ 
tionary  in  Congress,  172,  174, 
299.  See  Commissions,  and, 
Vacancies. 

Apportionment,  of  Representa¬ 
tives,  56-62,  104,  290.  Of  di¬ 
rect  taxes,  56-60,  97,  104,  290. 

Appropriations,  for  armies,  122, 
123,  294.  Before  drawing 

money  from  the  treasury,  144, 
295. 

Aristocracy,  absolute,  or  despotic, 
47. 

Arms,  on  keeping  and  bearing, 
264,  303. 

Army,' power  of  Congress  as  to 
the,  43,  122,  141,  294.  Rev¬ 
olutionary,  122.  Restrictions 
respecting  the,  123,  294.  A 
standing  impolitic,  265  ;  con¬ 
demned  in  the  Declaration  of 
Rights,  of  1774,  274. 

Arrest,  members  of  Congress, priv¬ 


ileged  as  to,  93,  292  ;  under 
the  Confederation,  281. 

Arsenals,  129,  295.  Reservation 
respecting,  130. 

Articles,  of  Confederation,  279. 
Of  the  Constitution,  289.  Of 
Amendments  to  the  Constitution, 
303.  Provisional, of  Peace, sign¬ 
ed  at  Paris,  in  1782,  324.  Of 
the  Definitive  Treaty  of  Peace, 
of  1783,  325.  Of  compact,  be¬ 
tween  the  original  States  and 
the  People  and  States  in  the 
Territory  northwest  of  the  river 
Ohio,  334.  See  Confederation. 

Arts  and  sciences,  promotion  of 
the,  118,  294. 

Assemblies  of  the  people,  264, 
303.  Claimed  in  the  Declara¬ 
tion  of  Rights,  of  1774,  274. 

Assemblies,  Provincial,  17.  Dis¬ 
solution  of,  by  English  gover¬ 
nors,  92,  272. 

Attainder,  effect  of,  in  treason, 
134,  135,239,301.  Bills  of,  not 
to  be  passed,  144  ;  by  Congress, 
144,  295  ;  nor  by  the  States, 
146,  150,  296. 

Authors,  copy-rights  for,  11S,  294. 

Ayes  and  noes,in  Congress, 92, 292. 

B. 

Bail,  excessive,  unconstitutional, 
238,  304. 

Baltimore,  Lord,  18.  William 
Penn  versus,  201. 

Bankruptcy,  power  of  Congress 
respecting,  114,  294.  Impo- 
tency  of  the  States  as  to,  115. 

Bills,  power  of  the  President  to 
approve  and  negative,  98,  293. 

Bills  for  raising  revenue  and  tax¬ 
es,  96,  293. 

Bills  of  attainder,  not  to  be  passed 
by  Congress,  144,  295  ;  nor  by 
the  States,  146,  150,  296. 

Bills  of  credit,  146,  148.  States 
forbidden  to  emit,  146,147,296. 
Meaning  of,  147.  Emission  of, 
under  the  Confederation,  2S6. 

Bills  of  indictment,  231. 


INDEX. 


353 


Bills  of  Rights,  of  1774,  24,  271. 
Of  States,  48,  256.  Under  the 
Constitution,  255,  303  ;  impor¬ 
tance  of  considered,  256. 

Blackstone,  Sir  William,  on  the 
laity  in  England,  82.  On  ex¬ 
culpation  by  witnesses,  in  capi¬ 
tal  cases,  235.  On  counsel  for 
accused  persons,  236.  On  the 
liberty  of  the  press,  263. 

Borrowing  money,  under  the  Con¬ 
federation,  29,  287.  Under  the 
Constitution,  107,  141,  294. 

Boston  Port  Bill,  271. 

Boundaries,  between  States,  200. 
Of  the  United  States,  according 
to  the  Definitive  Treaty  of  1783, 
325.  For  States  in  the  North¬ 
western  Territory,  336. 

Bribery,  impeachment  for,  81, 
83,  299.  Persons  liable  to  be 
removed  from  office  for,  178, 
299. 

C. 

Cabinet, see  Heads  of  Departments. 

Canada,  provision  for  the  acces¬ 
sion  of,  to  the  Confederation, 
287.  Boundaries  between  the 
United  States  and,  according  to 
the  Treaty  of  1783,  325. 

Capital  offences,  and  second  trials 
for,  230,  232,  304. 

Capitation  taxes,  103,  104,  295. 

Captures,  120,  122,  294.  Juris¬ 
diction  in  cases  of,  194.. 

Cases,  meaning  of,  in  the  sense  of 
the  Constitution,  189, 190.  By 
implication,  191.  In  equity, 
192,  216,  305.  See  Equity. 

Ceded  places,  power  of  Congress 
over,  129,  295.  Reservation 
respecting,  130. 

Censorship  of  the  Press,  262.  See 
Press. 

Census,  provision  for  the,  56,  58, 
290.  Capitation  or  other  direct 
taxes  according  to  the,  104,  295. 

Cessions,  see  Ceded  Places. 

Charter  granted  by  James  I.,  15. 

Charter  governments,  in  the  Amer¬ 

30* 


ican  colonies,  18.  Introduc¬ 
tion  of  the  common  law  into  the, 
20. 

Chief  Justice  shall  preside  at  the 
trial  of  the  President,  76,  78, 
291. 

Chisholm  versus  Georgia,  202. 

Church  and  State,  alliance  be¬ 
tween,  cut  off,  253,  259,  303. 

Cicero  condemned  torture,  233. 

Circuitous  voyages,  105. 

Citizens,  privileges  and  immunities 
of,  in  each  State,  242,  301.  See 
Controversies,  and  Judiciary. 

Citizenship,  of  Representatives, 
54,  55,  73,  290.  Of  Senators, 
73,  291.  Of  the  President  and 
Vice-President,  167,  297.  See 
Naturalization. 

Civil  obligation  of  contracts,  on 
impairing  the,  154. 

Civil  officers,  meaning  of,  under 
the  Constitution,  81. 

Clearances  at  custom  houses,  105, 

295. 

Coinage  of  money,  under  the  Con¬ 
federation,  30,  285.  Power  of 
Congress  respecting,  116,  294. 
Counterfeiting,  116,  294.  For¬ 
bidden  to  the  States,  146,  147, 

296. 

Coke,  Sir  Edward,  on  the  law  of 
the  land,  233.  On  witnesses  in 
behalf  of  accused  persons,  235. 

Colonial  governments,  17. 

Colonies,  see  American  Colonies. 

Colonists,  sent  to  England  for 
trial,  271. 

Columbia,  District  of,  129,  295. 

Combination  among  the  States, 
156,  245.  See  Alliances. 

Commerce,  crippled,  under  the 
Confederation,  31.  Foreign  im¬ 
positions  respecting,  32,  108. 
Power  of  Congress  to  regulate, 
108,  109,  141,  294.  State  of, 
at  the  adoption  of  the  Constitu¬ 
tion,  108.  Meaning  of  the  words 
“  to  regulate  commerce,”  110. 
See  Duties,  Taxes,  and  Trade. 

Commissioners,  appointed  by  Ma- 


354 


INDEX. 


ryland  and  Virginia,  meet  at 
Alexandria,  33.  Meeting  of,  at 
Annapolis,  33. 

Commissions  from  the  President, 
176,  178,  299.  See  Appoint¬ 
ments. 

Committee  of  the  States,  under  the 
Confederation,  285. 

Common  defence,  provision  for, 
42,  101,  141,  289,  293. 

Common  law,  of  England,  intro¬ 
duced  into  the  Colonies,  20. 
Conservative  principle  in  the, 
20.  Its  effects  in  the  Colonies, 
22.  Cases  at,  under  the  Consti¬ 
tution, 189.  See  Law, and  Laws. 

Common  socage,  16. 

Compacts,  see  Alliances. 

Compensation,  of  members  of  Con¬ 
gress,  93,  292.  Of  the  Presi¬ 
dent,  168,  298.  Of  the  judges 
ofthe  Supreme  Court,  181,  185, 
300.  For  private  property  taken 
for  public  use,  233,  304. 

Confederation,  history  of  the,  28. 
Delays  and  objections  to  the, 
28.  Final  adoption  of  the,  28. 
Defects  in  the,  29.  Powers  and 
weakness  of  the,  29.  Gave  to 
Congress  no  coercive  authority, 
30  ;  nor  penal  sanction  to  then- 
enactments,  30  ;  nor  power  to 
lay  taxes,  or  to  collect  revenue, 
30,  102  ;  nor  to  regulate  com¬ 
merce,  31.  Prospective  termi¬ 
nation  of  the,  33.  Convention 
for  revision  of  the  Articles  of, 
34.  Legislative  power  under  the, 
49.  Voting  in  Congress  under 
the,  56,  68,  281.  State  of  com¬ 
merce  under  the,  108.  Impoten- 
cy  of  the,  as  to  armies,  122. 
Restricted  the  authority  of  Con¬ 
gress  to  powers  expressly  grant¬ 
ed,  132,  279.  Want  of  an  execu¬ 
tive  department  in  the,  159  ;  of 
judicial  power,  180.  Authority 
under  the,  to  determine  differ¬ 
ences  between  States,  200,  283. 
Disregard  of  treaty  stipulations 
under  the,  250.  Articles  of, 


279.  See  Congress,  Continental. 

Confederation  among  States,  un¬ 
constitutional,  146,  296.  See 
Alliances. 

Confessions,  as  evidence,  241. 

Confiscation,  in  punishment  for 
treason,  unconstitutional,  134, 
135,  239,  301.  In  the  States, 
during  the  Revolution,  150. 
Articles  respecting,  in  the  treaty 
of  peace,  of  1783,  327,  328. 

Congress,  Continental,  first  and 
second  meetings  of  the,  24,  26. 
Declaration  of  Rights  of  the,  in 
1774,24,271.  Voting  in,  26, 
68,  281.  Organization  of  the, 
27.  Its  powers  and  its  weak¬ 
ness,  27,  29,  30.  Articles 
of  Confederation  by  the,  28, 

279.  Had  no  coercive  author¬ 
ity,  30  ;  nor  penal  sanctions 
for  its  enactments,  30.  Could 
not  lay  taxes  or  collect  revenue, 
for  the  public  service,  30  ;  nor 
regulate  commerce,  31.  Report 
laid  before  the,  for  a  General 
Convention,  33.  Calls  a  Con¬ 
vention  for  revision  of  the  Arti¬ 
cles  of  Confederation,  34.  Puts 
into  operation  the  Federal  Con¬ 
stitution,  34.  Adjournment  of, 
to  Princeton,  129.  Compelled 
to  violate  the  Confederation,  in 
order  to  preserve  it,  132.  Re¬ 
presentation  of  the  States  in  the, 

280.  Freedom  of  speech  and 
debate  in  the,  281.  Sole  and 
exclusive  rights  and  powers  of 
the,  283.  See  Confederation. 

Congress,  the  first  under  the  Con¬ 
stitution,  34.  Divided  into  two 
branches,  49, 289.  Impeachment 
by,  62,  63,  76,  78,  85,  290, 
291,  299.  Elections  for,  89,  90, 
291,  292.  Meetings  of,  90,  291. 
Powers  and  privileges  of  both 
Houses  of,  90,  292.  Judgement 
of  elections  by,  90,  91,  292. 
Quorum  of,  90,  91, 292.  Absent 
members  compelled  to  attend, 
90,91,292.  Rules  of,  91.  Pun- 


INDEX. 


355 


ishment  and  expulsion  of  mem¬ 
bers  of,  91,  292.  Journals  of, 
to  be  kept,  92,  292.  Yeas  and 
nays  of,  92,  292.  Adjournment 
of,  92,  292.  Contempts  of,  93. 
Compensation  of  members  of, 

93,  292.  Their  privilege  from  ar¬ 
rest,  93,  292.  Liberty  of  speech 
and  debate  in,  93,  94,  292. 
Disqualifications  of  members  of, 

94,  161,  162,  292,  297.  Mode 
of  passing  laws  in,  96,  293. 
Power  of  the  President  to  neg¬ 
ative  the  laws  of,  98-100,  293. 
Power  of,  to  lay  and  collect  tax¬ 
es,  101,103,141,293.  May  bor¬ 
row  money,  107, 141,  294.  May 
regulate  commerce,  108,  109, 
141,  294  ;  inquiries  respecting 
this  power,  109.  On  trade  with 
Indian  tribes,  108,109,113,294. 
Power  of,  respecting  naturaliza¬ 
tion,  114,  294  ;  bankruptcies, 
114,  294  ;  to  coin  money,  regu¬ 
late  the  value  thereof,  and  fix  the 
standard  of  weights  and  meas¬ 
ures,  116,  294  ;  as  to  counter¬ 
feiting,  116,  294  ;  post  offices 
and  post  roads,  117,  294;  pa¬ 
tents  and  copy-rights,  118,  294  ; 
to  constitute  tribunals  inferior  to 
the  Supreme  Court,  119,  181, 
218,  294,  299  ;  to  define,  and 
punish  piracies  and  felonies, 
committed  on  the  high  seas,  and 
offences  against  the  law  of  na¬ 
tions,  119,  294;  to  declare  war, 
120,  141,  294  ;  grant  letters  of 
marque  and  reprisal,  120,  121, 
294  ;  to  make  rules  concerning 
captures,  120,  122,  294  ;  to 
raise  and  support  armies,  122, 
123,  141,  294  ;  to  provide  and 
maintain  a  navy,  124,  141,  294; 
to  make  rules  for  land  and  na¬ 
val  forces,  124,  294;  to  provide 
for  calling  forth  the  militia,  125, 
127,  294  ;  for  organizing  and 
disciplining  the  militia,  126, 
294.  Power  of,  over  the  Seat  of 
the  Government,  128,  129,  295; 


over  ceded  places  for  forts,  mag¬ 
azines,  arsenals,  dock-yards, 
and  other  needful  buildings, 
128,  129,  295  ;  to  make  all  nec¬ 
essary  and  proper  laws  for  car¬ 
rying  their  powers  into  effect, 
131,295.  Implied  and  inciden¬ 
tal  powers  of,  131,  133,  141, 
191.  Power  of,  respecting  trea¬ 
son,  134,  239,  301  ;  respecting 
the  faith  and  credit  to  be  given 
in  each  State  to  the  public  acts, 
records,  and  judicial  proceedings 
of  every  other  State, 135, 301 ;  as 
to  the  admission  of  New  States, 
137,  140,  301,  336;  respecting 
the  territory,  or  other  property, of 
the  United  States, 138, 301.  Pro¬ 
hibitions  on  the  powers  of,  141, 
266,  305  ;  respecting  the  slave- 
trade,  142,  295  ;  respecting  the 
writ  of  habeas  corpus,  143,  295 ; 
respecting  bills  of  attainder,  and 
ex  post  facto  laws,  144,  239, 
295  ;  respecting  appropriations 
before  drawing  money  from  the 
treasury,  144,  295  ;  as  to  creat¬ 
ing  titles  of  nobility,  145,  296. 
Power  of,  respecting  Electors, 
166,  297.  Provision  by,  for  va¬ 
cancy  of  the  Presidency  and 
Vice-Presidency,  168,  298  ;  for 
appointment  of  inferior  officers, 
172,  174,  299.  The  President 
to  give  information  to,  and  re¬ 
commend  measures,  176,  299. 
Power  of  the  President  to  con¬ 
vene  and  adjourn,  176,  299. 
Authority  given  by,- to  the  post¬ 
master-general,  to  bring  suits, 
205.  Restriction  by,  on  appel¬ 
late  jurisdiction,  212-224,  226, 
227,  300,  304.  Power  of,  as  to 
designating  places  for  trials,  228, 
300  ;  respecting  amendments  to 
the  Constitution,  246,  302. 

Duty  of  courts,  respecting  un¬ 
constitutional  laws  passed  by, 
251.  Oaths  to  be  taken  by 
members  of,  251,  303.  No 
religious  test  required,  252,  253, 


356 


INDEX. 


303.  Amendments  to  the  Con¬ 
stitution,  adopted  by,  254,  303. 
Shall  make  no  law  respecting 
an  establishment  of  religion,  or 
prohibiting  the  free  exercise 
thereof,  255,  259,  303  ;  or 
abridging  the  freedom  of  speech, 
or  of  the  press,  255,  259,  261, 
303  ;  or  the  rights  of  the  peo¬ 
ple  peaceably  to  assemble,  and 
to  petition  the  government  for  a 
redress  of  grievances,  255,  259, 
264,  303.  Recommendations 
required  to  be  made  by  the,  ac¬ 
cording  to  the  treaty  of  1783, 
327,  328.  See  Commerce,  Con¬ 
gress,  Continental,  Impeach¬ 
ments,  Judiciary,  Representa¬ 
tives,  Senators,  and  States. 

Connecticut,  settled,  16.  Charter 
government  of,  19.  Adopts  the 
Constitution,  35. 

Conscience,  rights  of,  252,  253, 
255,  259,  303. 

Constitution  of  the  United  States 
of  America,  33,  289.  Origin  of 
the,  33.  Adoption  of  the,  34,  35, 
303.  Remarks  on  the  framers  of 
the,  35,  247.  Exposition  of  the, 
36.  Formed  by  the  people,  and 
not  by  the  States,  36.  Remarks 
on  the  interpretation  of  the,  36. 
Final  interpreter  of  the,  37.  The 
Preamble  of  the,  and  its  exposi¬ 
tion, 37, 289.  Distribution  of  pow¬ 
ers  by  the,  46,  289.  Separation 
of  the  legislative,  the  executive, 
and  the  judicial,  departments  by 
the,  47,  49.  On  the  House  of 
Representatives,  49,  50,  2S9. 
On  the  Senate  and  Senators,  49, 
64,  67,  290.  On  impeachments, 
62,63,76,291,298,  299.  On 
elections  and  meetings  of  Con¬ 
gress,  89,  291.  On  the  powers 
and  privileges  of  both  Houses, 
90,  292.  On  the  mode  of  pas¬ 
sing  laws,  96,  293.  On  tax¬ 
ation,  101,  141,  293.  On 

borrowing  money,  107,  294. 
On  regulating  commerce,  108, 


109,  294.  On  trade  with  Indian 
tribes,  108,  113,  294.  On  nat¬ 
uralization  ,  1 1 4,  294.  On  bank¬ 
ruptcy,  114,  294.  On  coinage 
of  money,  115,  294.  On  post- 
offices,  and  post  roads,  117,  294. 
On  patents  and  copy-rights,  118, 
294.  On  the  punishment  of 
piracies  and  felonies,  119,  294. 
On  the  declaration  of  war,  120, 
141,  294.  On  the  army,  122, 
294.  On  the  navy,  124,  294. 
As  to  militia,  125,  294.  On  the 
Seat  of  the  Government,  and  oth¬ 
er  ceded  places,  1 28,  295.  Gen¬ 
eral  power  of  Congress  under 
the,  to  make  necessary  and  prop¬ 
er  laws, 131, 295.  Onthe  punish¬ 
ment  of  treason,  134,  239,  301. 
On  State  Records,  135,  301. 
On  the  admission  of  New  States, 
137,  301.  On  the  government 
of  Territories,  138,  301.  Pro¬ 
hibitions  on  the  United  States 
by  the,  142,  305  ;  on  the  States 
by  the,  146,  296.  On  the  struc¬ 
ture,  organization,  and  powers, 
of  the  Executive  department, 
158,  296.  On  the  powers  and 
duties  of  the  President,  170,  298. 
On  the  Judicial  department, 
179,  299.  On  the  powers  and 
jurisdiction  of  the  Judiciary, 
186,  300,  304,  305.  On  trial 
by  jury,  228,  300.  Definition 
of  treason  by  the,  239,  300.  On 
the  privileges  of  citizens,  242, 
301.  On  fugitive  criminals  and 
slaves,  242,  243,  301.  Guaran¬ 
tee  of  republican  government  by 
the,  to  the  States,  244,  302. 
Mode  of  making  amendments  to 
the,  246,  302.  Considered  as 
an  experiment,  247,  267.  On 
public  debt,  248,  302.  Supre¬ 
macy  of  Laws,  treaties,  and  the, 
249,302.  On  oath  of  office, 251, 
298,  303.  On  religious  tests, 
252,  253,  303.  Ratification  of 
the,  254,  303.  Amendments  to 
the,  254,  303.  Regarded  as  a 


INDEX. 


357 


Bill  of  Rights,  255,  259,  303. 
Powers  not  delegated  to  the 
United  States  by  the,  266,  305. 
Concluding  remarks  on  the,  267. 
Disturbing  causes  of  the,  269. 
See  Congress,  Impeachment, 
Judiciary,  President,  Represen¬ 
tatives,  Senate,  Senators,  and 
States. 

Constitutional  questions,  impor 
tance  of  independence  in  the 
Judiciary  as  to,  184.  Jurisdic¬ 
tion  in,  186,  188,  190,  300. 

Constructive  treasons,  240. 

Consuls,  appointment  of,  172,  173, 

299.  Suits  by  and  against,  186, 
193,  213,  223,  300. 

Contempts  of  Congress,  93. 

Continental  Congress,  see  Con¬ 
gress,  Continental. 

Contracts,  laws  impairing  the  obli¬ 
gation  of,  prohibited,  146,  150, 
248,  296,  302.  Remarks  on, 
150.  Express  and  implied,  151. 
The  obligation  of,  152.  What 
impairs,  154.  Insolvent  laws 
by  States  respecting,  155. 

Controversies,  judicial  power  in, 
where  the  United  States  is  a 
party,  186,  187,  199,  300.  Be¬ 
tween  two  or  more  States,  186, 
187,  199,  200,  221,300.  Be¬ 
tween  a  State  and  citizens  of  an¬ 
other  State,  186,  187,  199,  201, 

300.  Between  citizens  of  differ¬ 
ent  States,  186,  187,  205,  221, 
300  ;  of  the  same  State,  claiming 
lands  under  grants  of  different 
States,  186,  187,  209,  221,  300. 
Between  a  State,  or  the  citizens 
thereof,  and  foreign  States,  citi¬ 
zens,  or  subjects,  186,  187,  210, 
211,  221,  300. 

Conventions,  at  Alexandria  and 
Annapolis,  33.  At  Philadel¬ 
phia,  for  forming  the  Consti¬ 
tution,  34.  For  amendments  to 
the  Constitution,  246,  302. 

Ratifications  of,  254,  303. 

Conviction,  in  cases  of  impeach¬ 
ment,  76,  79,  88,  291.  Testi¬ 


mony  necessary  to,  76,  291  ;  in 
treason,  241,  300. 

Copy-rights,  118,  294. 

Corporations,  non-identification  of 
States  with,  204.  Not,  consti¬ 
tutionally,  citizens,  208.  For¬ 
eign,  may  sue  in  the  courts  ofthe 
Union,  211. 

Corruption  of  blood,  in  treason, 
134,  135,  301. 

Council,  The,  under  the  Provincial 
Governments,  17,  274. 

Counsel  for  accused  persons,  236, 
304.  See  Accused. 

Counterfeiting  securities  and  mon¬ 
ey,  116,  294. 

Country,  trial  by  the,  228.  See 
J  ury. 

Credit,  States  cannot  emit  bills  of, 
146,  147,  296.  Meaning  of 
bills  of,  147.  Emission  of  bills 
of,  in  the  Revolution,  and  un¬ 
der  the  Confederation,  148, 
2S6.  Washington  on  public, 
317.  See  Debts. 

Crimes,  impeachable,  81,  83,  88, 
299.  Committed  upon  the  high 
seas,  119,  198,  294.  Mode  and 
place  of  trying,  228,  229,  300, 
304.  Second  trials  for,  230, 

232,  304.  See  High  Seas,  Im¬ 
peachment,  and  Offences. 

Criminals, on  delivering  up  fugitive, 
140,  242,  301,  337.  Trial  of, 
228,  229,  300,  304.  Not  bound 
to  accuse  themselves,  230,  233, 
304.  Not  to  be  twice  tried,  230, 

233,  304.  Delivering  up  fugi¬ 
tive,  under  the  Confederation, 
280. 

Crown,  see  King. 

Currency,  of  the  country,  116, 
294.  Paper,  148.  See  Money. 

Custom-house  entries  and  clear¬ 
ances,  105,  295. 

Customs,  use  of  the  word,  103. 

D. 

Dane,  Nathan,  ordinance  by,  for 
the  government  of  the  Terri¬ 
tory  of  the  United  States  north- 


358 


INDEX. 


west  of  the  river  Ohio,  139, 
329. 

Debate,  liberty  of,  in  Congress, 
93,  94,  292.  In  the  Continen¬ 
tal  Congress,  281. 

Debts,  public,  under  the  Confed¬ 
eration,  32.  To  foreigners,  un¬ 
paid,  41.  Prohibitions  on  the 
States  respecting,  146, 149,  296. 
Tender  in  payment  of,  146, 
149,  296.  State,  at  the  adop¬ 
tion  of  the  Constitution,  216. 
Contracted  before  the  adoption 
of  the  Constitution,  valid  after¬ 
ward,  248,  302.  Washington 
on  the  public,  317. 

Decimal  mode  of  calculation,  116. 

Declaration  of  Independence,  12, 
24,  27,  275. 

Declaration  of  Rights,  in  1774, 
24,  271. 

Declaration  of  war,  120, 141,  294. 

Defence,  the  common,  provision 
for,  42,  101,  141,  289,  293. 

Definitive  Treaty  of  peace,  be¬ 
tween  the  United  States  of 
America  and  his  Britannic  Maj¬ 
esty,  324.  See  Peace. 

Delaware,  settlement  of,  12,  16. 
Proprietary  government  of,  18. 
Adopts  the  Constitution,  35. 

Delegates,  to  the  Continental  Con¬ 
gress,  26,  272,  280.  For  re¬ 
vising  the  Articles  of  the  Con¬ 
federation,  34.  The  choice  of, 
and  representation  by,  in  the 
Continental  Congress,  280. 

Democratic  governments,  features 
of,  47. 

Departments,  see  Heads  of  the 
Departments. 

Despotic  governments,  features 
of,  46. 

Direct  taxes,  apportionment  of, 
56-60,  97,  104,  290.  Power 
of  Congress  to  lay  and  collect, 
103,  295.  Meaning  of,  103. 

Discovery,  title  founded  upon  the 
right  of,  13.  Effect  of,  upon 
the  Indian  title,  14. 

Disqualifications  of  members  of 


Congress,  94,  161,  162,  292, 
297. 

Distribution  of  powers,  in  govern¬ 
ments,  46. 

District  of  Columbia,  129,  295. 

Division,  of  legislative,  executive, 
and  judicial,  powers,  47.  Of 
legislative  powers,  49,  289. 

Dock-yards,  129,  295.  Reserva¬ 
tions  respecting,  130. 

Domestic  insurrections,  suppres¬ 
sions  of,  244,  302. 

Domestic  manufactures,  encour¬ 
agement  of,  113. 

Domestic  tranquillity,  on  insuring, 
42,  289. 

Dutch,  early  settlements  by  the, 
in  New  York  and  Delaware,  12. 

Duties,  evils  of  want  of  uniformi¬ 
ty  in,  among  the  States,  44. 
Power  of  Congress  to  lay  and 
collect,  101,  293.  Use  of  the 
word,  103.  Uniformity  in,  re¬ 
quired,  104,  294.  On  imports, 

105,  296.  Not  to  be  laid  on 
exports,  105,  295,  296.  By 
the  States,  unconstitutional, 

106,  156,  296. 

E. 

East  Greenwich,  manor  of,  held 
in  free  and  common  socage,  16. 

Education,  Washington  on  institu¬ 
tions  for,  317. 

Elections  for  Congress,  89,  90, 

291,  292.  Judges  of,  90,  91, 

292. 

Electors  of  President  and  Vice- 
President,  choice  of,  161,  297. 
Their  mode  of  electing,  162, 
163,  297,  305.  Vote  by  ballot, 
163,  165,  297,305.  Time  of 
choosing,  166,  297.  Time  of 
their  voting,  166,  297. 

Electors  of  Representatives,  quali¬ 
fications  for,  50,  51,  289. 

Emigrants,  142,  295.  See  Natur¬ 
alization. 

Emission  of  bills  of  credit,  by  the 
States,  unconstitutional,  146, 
147,  296. 


INDEX. 


359 


Emit,  meaning  of,  148. 

England,  see  Peace. 

Enlistments  in  the  Revolution, 

122. 

Equity,  cases  of  law  and,  186, 
189,  192,  216,  300. 

Establishments  of  religion,  uncon¬ 
stitutional,  255,  259,  303. 

Europeans,  claim  of,  to  the  soil  of 
America,  13. 

Ex  post  facto  laws,  prohibition 
of,  by  the  Union,  144,  295  ;  by 
the  States,  146,  150,  296. 

Excises,  power  of  Congress  to  lay 
and  collect,  101,  293.  Use  of 
the  word,  103.  Uniformity  in, 
required,  104,  294. 

Executed  and  executory  contracts, 
151. 

Execution  of  the  laws,  the  Presi¬ 
dent  to  take  care  as  to  the, 
177,  299. 

Executive  department,  structure, 
organization,  and  powers  of  the, 
158  ;  the  President,  159,  296. 
Three  practical  questions  re¬ 
specting  the,  considered,  159. 
Unity  in  the,  159.  See  Presi¬ 
dent. 

Expenditures  of  public  money,  ac¬ 
count  of,  to  be  published,  144, 
145,  296. 

Exports,  no  duties  on,  105,  295. 
Duties  on,  by  the  States,  106, 
296. 

Express  contracts,  151. 

Expulsion  from  Congress,  91,  292. 

F. 

Fact,  jurisdiction  of  the  Supreme 
Court  as  to  the  law  and,  224, 
226,  300,  304. 

Faith  and  credit  to  be  given  to  the 
acts,  records,  and  judicial  pro¬ 
ceedings  of  the  States,  135,  242, 
301. 

Farewell  Address  of  Washington, 
306. 

Federal  Constitution,  see  Consti¬ 
tution. 

Felonies,  119,  242,  294,  301. 


Fines,  excessive,  not  to  be  impoa- 
ed,  238,  304. 

First  Colony,  under  the  charter 
of  James  I.,  15. 

Fisheries,  privileges  as  to,  accord¬ 
ing  to  the  treaty  of  17S3,  327. 

Florida,  acquisition  of,  138. 

Foreign  alliances,  Washington  on, 
321.  See  Alliances. 

Foreign  commerce,  regulation  of, 
108,  109,  141,  294.  See  Com¬ 
merce. 

Foreign  corporations,  see  Corpora¬ 
tions. 

Foreign  debts,  non-payment  of,  41. 
See  Debts. 

Foreign  influence,  Washington  on, 
319. 

Foreign  judgements,  proof  of,  135. 

Foreign  ministers,  to  be  received 
by  the  President,  176,  299. 
Jurisdiction  of  the  Judiciary 
over,  186,  192,  213,  221,  223, 
300. 

Foreign  powers,  resistance  to,  by 
individual  States,  43.  The  faith 
to  be  given  to  the  acts,  records 
and  judicial  proceedings  of,  135. 
Presents  and  favors  from,  pro¬ 
hibited,  145,  296.  Controversies 
with,  210,  300.  Cannot  be 
compelled  to  become  parties, 
211. 

Foreigners,  justice  towards,  40. 
Jurisdiction  in  cases  affecting, 
196.  See  Aliens. 

Forfeiture,  see  Confiscation. 

Forgeries,  116,  294. 

Forts,  129,  295.  Reservation  re¬ 
specting,  130. 

France,  peace  between  Great  Brit¬ 
ain  and,  324. 

Franklin,  Benjamin,  various  offices 
held  by,  325.  Minister  Plenipo¬ 
tentiary  for  concluding  and  sign¬ 
ing  the  Definitive  Treaty  of 
Peace, between  the  United  States 
of  America  and  his  Britannic 
Majesty,  in  1783,  325,  329. 

Freedom  of  the  press,  255,  261, 
303. 


360 


INDEX. 


Freedom  of  speech,  see  Liberty. 

Freedom,  religious,  139,  252,  253, 
255,  259,  303,  334. 

Fugitive  criminals  and  slaves,  on 
delivering  up,  140,  242,  301, 
337.  Under  the  Confedera¬ 
tion,  280. 

G. 

General  welfare,  on  promoting  the, 
44,  102,  289,  294. 

George  III.,  injuries  and  usurpa¬ 
tions  by,  276.  Definitive  Trea¬ 
ty  of  Peace  between  the  United 
States  of  America  and,  324. 
Peace  between  France  and, 
324.  See  King. 

Georgia,  settled,  16.  Government 
of,  at  the  commencement  of  the 
Revolution,  18.  Adopts  the 
Constitution,  35.  Chisholm  ver¬ 
sus,  202. 

Germany,  war3  in,  previous  to  the 
institution  of  the  Imperial  cham¬ 
ber,  200. 

Glossary,  339. 

Gold,  to  be  legal  tender  in  pay¬ 
ment  of  debts,  146,  149,  296. 

Governments,  the  Colonial,  17. 
Provincial,  17.  Proprietary,  17, 
18.  Charter,  17,  18.  The 
Revolutionary,  26.  The  three 
great  powers  of,  46.  Of  the 
Territory  northwest  of  the  Ohio, 
139,329.  Republican,  guaran¬ 
tied  to  the  States,  244,245,302. 
Rights  of,  as  to  religious  inter¬ 
ference,  260.  Difficulty  of  fix¬ 
ing  principles  for,  268.'  Re¬ 
marks  on,  in  the  Declaration  of 
Independence,  275. 

Governors,  under  Provincial  gov¬ 
ernments,  17.  Under  proprie¬ 
tary  governments,  18.  Under 
charter  governments,  19.  Ap¬ 
proval  of  Speakers  by,  62. 
Prorogued  and  dissolved  Assem¬ 
blies,  92,  272.  Powers  and 
privileges  of,  according  to  the 
Ordinance  for  the  government 
of  the  Territory  northwest  of 
the  Ohio,  139,  331. 


Grand  Bank,  the  privilege  to  take 
fish  on  the,  according  to  the 
treaty  of  1783,  327. 

Grand  Jury,  231.  See  Jury. 

Grants,  151,  152. 

Great  Britain,  see  Peace. 

Guarantee  of  a  republican  form  of 
government  to  the  States,  244, 
245,  302. 

H. 

Habeas  corpus  writ,  provision  for 
the  right  to  the,  in  the  North¬ 
western  Territory,  139,  324. 
Privilege  of,  and  suspension  of 
it,  143,  295.  Meaning  of  the, 
143.  On  the  exercise  of  au¬ 
thority  respecting,  224. 

Hardwicke,  Lord,  on  appellate  ju¬ 
risdiction,  201. 

Hartley,  David,  British  minister 
plenipotentiary  for  signing  the 
Definitive  Treaty  of  Peace,  be¬ 
tween  the  United  States  of 
America  and  his  Britannic  Ma¬ 
jesty,  in  1783,  324,  329. 

Heads  of  the  Departments,  restric¬ 
tions  respecting  the,  94,  95,  292. 
President  may  require  the  opin¬ 
ions  of  the,  170,  171,  298. 
Appointments  by  the,  172,  174, 
299 

Henry  III.,  20. 

High  seas,  definition  of,  119.  Pun¬ 
ishments  of  crimes  upon  the, 
119,294.  Jurisdiction  in  cases 
of  crimes  committed  upon  the, 
187,  196, 198,  300.  See  Crimes. 

History,  of  the  American  Colonies, 
11.  Of  the  Confederation,  28. 

House  of  Commons,  election  of 
Speaker  by  the,  62.  Impeach¬ 
ment  by  the,  63.  Money  bills 
originate  in  the,  97.  On  the 
right  to  witnesses,  by  accused 
persons,  235. 

House  of  Lords,  a  court,  63.  Re¬ 
strictions  on  the,  as  to  money 
bills,  97. 

House  of  Representatives,  in  the 
colonies,  17,  19.  See  Represen¬ 
tatives. 


INDEX. 


361 


I. 

Ignored  bills,  232. 

Impairing  contracts,  laws  for,  un¬ 
constitutional,  146,  150,  248, 
296,  302.  Meaning  of,  154. 
See  Contracts. 

Impeachment,  by  the  House  of 
Representatives,  62,  63,  85, 
87,  290.  Trial  of,  before  the 
Senate,  76,  85,  291.  Of  the 
President  of  the  United  States, 
76,78,83,291.  Requirements 
necessary  for  conviction,  76,  79, 
291.  Mode  of  trial  in,  78,  291. 
The  judgement  to  be  rendered 
in  cases  of,  79,  88,  291.  Per¬ 
sons  liable  to,  81,  83,  178,  299. 
Extent  of  the  power  of,  81, 299. 
Offences  for,  81,  83,  88,  299. 
Summary  statement  of  the  pro¬ 
ceedings  respecting,  85.  No 
pardon  upon  conviction  of,  88, 
170,  172,  298. 

Implication,  cases  arising  by, 191. 

Implied  contracts,  151. 

Implied  powers  of  Congress,  131, 
133,  141,  191. 

Implied  prohibitions  on  the  States, 
157. 

Importation  and  migration  of 
slaves,  142,  295. 

Imports,  on  duties  on,  105,  296. 
See  Duties. 

Imposts,  power  of  Congress  to 
lay,  and  collect,  101,  293.  Use 
of  the  word,  103.  Uniformity 
in,  required,  104,  294. 

In  capite,  16. 

Incidental  powers,  of  Congress, 
131,  141,  191.  Of  the  Presi¬ 
dent  of  the  United  States, 
178. 

Independence,  declared,  12,  24, 
27,  275.  Admitted  by  Great 
Britain,  24,  325. 

Indians,  title  of  the,  to  the  soil,  12. 
Rights  and  privileges  retained 
by  the,  14.  Power  of  Congress' 
to  regulate  commerce  with  the, 
108,  109,  294.  Trade  with, 
113.  Good  faith  to  be  observed 

31 


towards,  in  the  Northwestern 
Territory,  335. 

Indictments,  230,  231,  232,  304. 

Indirect  taxes,  meaning  of,  103. 

Inferior  courts,  establishment  of, 
119,  181,  218,  294,  299. 

Influence,  foreign,  Washington 
on,  319. 

Inhabitancy,  of  Representatives, 
54,  55,  74,  290.  Of  Senators, 
73,291.  Of  the  President  and 
Vice-President,  167,  298. 

Innocent  persons,  punished,  135. 

Innovations  in  the  government, 
Washington  on,  314.  See 
Amendments. 

Insolvent  laws,  power  of  Congress 
respecting,  114,  294.  By  the 
States,  155. 

Inspection  laws,  provision  as  to, 
106,  296. 

Institutions,  Washington  on  liter¬ 
ary,  317. 

Insurrections,  suppression  of  do¬ 
mestic,  244,  302. 

Invasion,  protection  against,  244, 
302. 

Inventions,  patents  for,  118,  294. 
J. 

James  I.,  charter  granted  by,  15. 

Jay,  John,  various  offices  held 
by,  325.  Minister  Plenipoten¬ 
tiary  for  concluding  and  signing 
the  Definitive  Treaty  of  Peace, 
between  the  United  States  of 
America  and  his  Britannic  Ma¬ 
jesty,  in  1783,  325,  329. 

Jeopardy  of  life  and  limb,  230, 
232,  304. 

John,  King  of  England,  Magna 
Charta  wrung  from,  20. 

Journals  of  Congress  to  be  kept, 
92,  292. 

Judgement  to  be  rendered  in  cases 
of  impeachment,  79,  88,  291. 
Not  pardonable  by  the  Presi¬ 
dent,  88,  170,  172,  298.  See 
Impeachment. 

Judgements,  foreign,  proof  of,135. 

Judges,  appointment  and  tenure 

XIII. 


362 


INDEX 


of  office  of,  174,  181,  182, 
299,  300.  Compensation  of, 

185,  300.  Impeachable,  185. 
Tenure  of  office  of,  in  different 
States,  206.  Functions  of  the 
National,  228.  In  the  Territory 
northwest  of  the  river  Ohio, 331. 

Judicial  power  of  the  Senate,  76, 
291. 

Judiciary,  under  the  Constitution, 
48,  289.  Appointments  of 

judges,  and  tenure  of  office  in 
the,  174,  181,  182,  299,  300. 
Indispensableness  of  the,  179, 
180.  Montesquieu  on  the,  180. 
Two  ends  of  government  to  be 
attained  by  the,  181.  Estab¬ 
lishments  of  courts,  181,  299. 
Provision  for  the  independence 
of  the,  182,  183,  300.  Ju¬ 
risdiction  of  the,  186;  in  cases 
arising  under  the  Constitution, 

186,  188,  190,  221,  223,  300  ; 
under  the  laws  of  the  United 
States,  186,  1S8,  190,  216,  221, 
223,  300  ;  under  treaties,  186, 
189,  190,  216,  221,  223,  300  ; 
incases  of  law  and  equity,  186, 
189,  192,  216,  300,  305  ;  in 
cases  affecting  ambassadors,  and 
other  public  ministers,  186, 
192,  213,  221,223,  300  ;  con¬ 
suls,  186,  193,  213,  223,  300  ; 
of  admiralty  and  maritime  juris¬ 
diction,  186,  187,  194,  196, 
221,  223,  300  ;  of  captures, 

187,  194,  ;  of  crimes  upon  the 
high  seas,  186,  187,  196,  198, 
300  ;  of  controversies,  to  which 
the  United  States  is  a  party, 
186,  187,  199,  223,  300  ;  of 
controversies  between  States, 

186,  187,  199,  200,  221,  300  ; 
between  a  State  and  citizens  of 
another  State,  186,  187,  199, 

201,  223,  300  ;  in  suits  brought 
by  and  against  a  State,  186, 

202,  217,  305.  Jurisdiction  of 
the,  in  controversies  between 
citizens  of  different  States,  186, 

187,  205,  221,  300  ;  of  the 
same  State  claiming  grants  of 


different  States,  186,  187,  209, 
221,  300  ;  between  a  State,  or 
the  citizens  thereof,  and  foreign 
States,  citizens  or  subjects,  186, 
187,  210,  211,  221,  223,  300. 
The  mode  of  exercising  juris¬ 
diction  by  the,  212,300.  De¬ 
tails  respecting  the  original  and 
appellate  jurisdiction  of  the,  212 
—227.  Bound  by  the  Constitu¬ 
tion,  laws,  and  treaties,  219, 
302.  Object  of  the,  222.  Ex¬ 
clusive  powers  of  the,  223. 
Non-interference  of,  with  State 
courts,  224.  Jurisdiction  of  the, 
both  as  to  law  and  fact,  224, 
226,  300,  304. 

Jurisdiction,  see  Appellate,  Judic¬ 
iary,  and  Original. 

Jury,  trial  by,  and  its  incidents, 

228,  300,  304.  Object  of  it, 

229.  Grand,  231. 

Justice,  establishment  of,  40,  289. 
Administration  of,  40.  Evils 
requiring,  41.  National,  en¬ 
joined  by  Washington,  318.  See 
Judiciary. 

K. 

King,  authority  of  the,  in  the  Pro¬ 
vincial  governments,  17-21. 
Rights  and  prerogatives  of  the, 
23.  Approbation  of  the  Speaker 
of  the  House  of  Commons  by 
the,  62.  May  prorogue  Parlia¬ 
ment,  92.  Negatived  laws  pro¬ 
hibiting  the  slave  trade,  143. 
Jurisdiction  of  the,  in  controver¬ 
sies  between  Colonies,  200. 
See  George  III. 

Knowledge,  importance  of,  in 
Members  of  Congress,  52. 
Washington,  on  institutions  for, 
317. 

L. 

Laity  in  England,  82. 

Lands,  under  the  Articles  of  Con¬ 
federation,  29.  Ceded  to  the 
government,  128,  295.  Juris¬ 
diction  in  certain  controversies 
respecting,  209. 


INDEX. 


363 


Law  and  equity,  cases  of,  186, 
189,  192,  216,  300. 

Law  and  fact,  jurisdiction  of  the 
Supreme  Court  as  to,  224,  226, 
300,  304. 

Law  of  the  land,  233. 

Law  of  nations,  offences  against, 

119,  294. 

Laws,  for  new  countries,  21. 
Inefficacy  of,  under  the  Con¬ 
federation,  30.  Mode  of  pas¬ 
sing,  in  Congress,  96,  293. 
Power  of  Congress  to  make  nec¬ 
essary  and  proper,  131,  295. 
Expost  facto,  by  Congress,  144, 
295  ;  by  the  States,  146,  150, 
296.  Impairing  the  obligation 
of  contracts,  146,  150,  248, 
296,  302.  Uniformity  in  inter¬ 
preting,  181.  Duty  of  the  Pres¬ 
ident  respecting  the  faithful  ex¬ 
ecution  of  the,  177,  299.  Ju¬ 
risdiction  in  cases  under  the 
United  States’,  186,  188,  190, 
216,  221,  223,  300.  Suprema¬ 
cy  of  the  Constitution,  treaties, 
and,  249,  302.  Washington, 
on  oppositions  to  the,  313.  See 
Common,  Congress,  and  Ju¬ 
diciary. 

Legal  tender  in  payment  of  debts, 
146,  149,  296. 

Legislation  in  ceded  places,  129, 
130,  295. 

Legislative  powers  under  the  colo¬ 
nial  governments,  17—19.  Un¬ 
der  the  Confederation  and  Con¬ 
stitution,  47,  49,  289.  Advan¬ 
tages  of  the  division  of,  in  Con¬ 
gress,  49. 

Legislature,  see  Congress,  Repre¬ 
sentatives,  and  Senate. 

Letters  of  marque  and  reprisal, 

120,  121,  294.  By  the  States, 
unconstitutional,  146,  296. 

Levies  for  the  Revolutionary  ar¬ 
my,  122. 

Liberty,  on  securing  the  blessings 
of,  45,  289.  Of  speech  and  de¬ 
bate  in  Congress,  93,  94,  292. 
Religious,  252,  253,  255,  259, 


303.  Of  speech,  255,  261,  303. 
Of  the  press,  255,  261,  303  ; 
restricted  in  foreign  countries, 
262  ;  loose  reasoning  on  it,  263. 
Of  speech  and  debate,  under  the 
Confederation,  281. 

Licensing  the  press,  263. 

Licentiousness  of  the  press,  264. 

Life  or  limb,  second  trials  for,  230, 
232,  304. 

Literary  institutions,  Washington 
on,  317. 

Loyalists,  articles  respecting,  in 
the  treaty  of  1783,  327. 

Louisiana,  acquisition  of,  108, 
138. 

M. 

Mably,  Abbe,  on  neighboring 

states,  38. 

Magazines,  129,  295.  Reservation 
respecting,  130. 

Magna  Charta,  20.  Valuable  pro¬ 
visions  in  the,  257. 

Mail  routes,  117,  294. 

Maritime  jurisdiction,  power  of  the 
Judiciary  in  cases  of  admiralty 
and,  186,  187,  194,  196,  221, 
223,  300. 

Marque,  letters  of,  and  reprisal, 
120,  121,  294.  By  the  States, 
unconstitutional,  146,  296. 

Maryland,  settled,  16.  Proprietary 
government  of,  18.  Accedes  to 
the  Confederation,  28.  Com¬ 
missioners  appointed  by,  in 
1785,  33.  Adopts  the  Consti¬ 
tution,  35. 

Massachusetts,  settled,  16.  Union 
of,  with  Plymouth,  16.  Charter 
government  of,  19.  Recom¬ 
mends  a  Continental  *  Congress, 
26.  Adopts  the  Constitution, 
35. 

Maximilian,  institution  of  the  im¬ 
perial  chamber  by,  200. 

Measures  and  weights,  power  of 
Congress  as  to,  116,  294. 

Meetings  of  Congress,  90,  291. 

Migration  and  importation  of 
slaves,  142,  295. 


364 


INDEX. 


Military  establishments,  Washing¬ 
ton  on,  311. 

Military  officers,  distinction  be¬ 
tween  civil  and,  82.  Trial  and 
punishment  of,  82.  Appoint¬ 
ment  of,  under  the  Confedera¬ 
tion,  282,  285. 

Militia,  power  of  Congress  over 
the,  125,  294.  Discipline  and 
government  of  the,  126,  294. 
Commander  of  the,  when  cal¬ 
led  out,  128,  298.  Amend¬ 
ment  of  the  Constitution  re¬ 
specting  the,  264,  303.  Right 
of  the,  to  bear  arms,  264,  265, 
303.  Importance  of  the,  265. 
Clause  respecting,  in  the  Con- 

»  federation,  282. 

Ministers,  public,  appointment  of, 
172,  173,  299.  To  be  received 
by  the  President,  176,  299.  Ju¬ 
risdiction  of  the  Judiciary  as  to, 
186,  192,  213,  221,  223,  300. 

Mississippi  River  and  its  tributa¬ 
ries,  freedom  of  the,  according 
to  the  Ordinance  for  the  gov¬ 
ernment  of  the  Northwestern 
Territory,  140,  336.  A  boun- 

•  dary  of  the  United  States,  326. 
Freedom  of  the,  according  to 
the  treaty  of  1783,  329. 

Mode  of  passing  laws  in  Congress, 
96,  293. 

Money,  borrowing,  under  the  Con¬ 
federation,  29,  287,  288.  Coin¬ 
age  of,  under  the  Confedera¬ 
tion,  30,  287.  Power  of  Con¬ 
gress  for  borrowing,  107,  141, 
294  ;  as  to  coining,  115,  294  ; 
regulating  the  value  of,  116, 
294  ;  and  counterfeiting,  116, 
294.  Appropriation  of,  for  ar¬ 
mies,  122,  123,  294.  On  ap¬ 
propriating,  before  drawing 
from  the  treasury,  144,  295. 
States  forbidden  to  coin,  146, 
147,  296.  See  Bills,  and  Pa¬ 
per. 

Montesquieu,  on  the  judiciary, 180. 

Morality,  indispensable  to  political 
prosperity,  316.  See  Religion. 


N. 

National  justice,  40,  289.  Enjoin¬ 
ed  by  Washington,  318. 

National  prejudices,  Washington 
on,  318. 

Naturalization,  power  of  Congress 
respecting,  114,  294.  See  Cit¬ 
izenship. 

Naval  officers,  trial  of,  82. 

Navigation,  power  of  Congress 
over,  110.  See  Commerce. 

Navy,  power  of  Congress  as  to, 
43,  124,  141,  294. 

Necessary  and  proper,  meaning  of, 
as  to  powers  of  Congress,  131, 
133. 

Negative  of  the  President  on  laws, 
98,  293. 

Neighboring  States,  Abbe  Mably 
on,  38. 

Neutrality,  Washington  on,  322. 

New  countries,  laws  of  England 
for,  21. 

New  England,  origin  of  the  States 
of,  15. 

New  Hampshire,  settled,  16.  Gov¬ 
ernment  of,  at  the  commence¬ 
ment  of  the  Revolution,  18. 

New  Jersey,  settled,  16.  Adopts 

the  Constitution,  35. 

r  % 

New  States,  admission  of,  into  the 
Union,  137,  301,  336. 

New  York,  settled,  12,  16.  Gov¬ 
ernment  of,  at  the  commence¬ 
ment  of  the  Revolution,  18. 
Concessions  of  territory  by,  29. 
Adopts  the  Constitution,  35. 

New-York  city,  the  seat  of  govern¬ 
ment,  34. 

Nobility,  prohibition  of  titles  of,  by 
Congress,  145,  296  ;  by  the 
States,  146,  156,  296. 

Nominations  by  the  President, 
172,  173,  299. 

North  Carolina,  settled,  16.  Gov¬ 
ernment  of,  at  the  commence¬ 
ment  of  the  Revolution,  18. 
Proceedings  of,  respecting  the 
adoption  of  the  Federal  Consti¬ 
tution,  34. 

Northeastern  boundary  of  the  Uni- 


INDEX. 


365 


ted  States,  according  to  the  trea¬ 
ty  of  1783,  325. 

Northern  Colony,  under  the  char¬ 
ter  of  Janies  I.,  15. 

Northwestern  boundary  of  the 
United  States,  according  to  the 
treaty  of  1783,  326. 

Northwestern  Territory,  138.  Peo¬ 
pling  of  the,  139.  Dane’s  ordi¬ 
nance  for  the  government  of  the, 
139,  329.  Division  of  the,  into 
States,  140,  336.  Articles  of 
compact  between  the  original 
States  and  the  people  and  States 
of  the,  334. 

O. 

Oaths  of  office,  of  the  President, 
169,  298.  Of  Senators  and 
Representatives,  252,  303.  Of 
executive  and  judicial  officers, 
252,  253,  303.  Of  State  officers, 
252,  303.  Washington  on,  317. 

Obligation  of  contracts,  impairing 
the,  146,  150,  154,  296.  Mean¬ 
ing  of,  152. 

Offences,  for  impeachment,  81, 83, 
88,  299.  Against  the  law  of  na¬ 
tions,  119,  294.  See  Crimes. 

Office,  tenure  of,  by  Representa¬ 
tives,  50,52,289  ;  by  Senators, 
67,71,290.  Disqualifications  of 
members  of  Congress  respect¬ 
ing,  94,  292.  Prohibition  to 
hold  foreign,  145,  296.  Tenure 
of,  by  the  President,  159,  160, 
296  ;  by  the  Vice-President, 
159,  161,  296.  Appointments 
to,  172-175,  299.  Removal 
from,  174.  Tenure  of,  174  ; 
by  judges,  181,  182,  300  ;  by 
judges  in  different  States,  206. 
See  Appointments, Oaths,  Qual¬ 
ifications,  and  Vacancies. 

Officers,  United  States’,  to  be 
commissioned  by  the  President, 
178,  299.  Appointment  of  mili¬ 
tary,  under  the  Confederation, 
282,  285. 

Ordinance  of  the  Continental  Con¬ 
gress,  of  the  13th  of  July,  1787, 

31* 


for  the  government  of  the  terri¬ 
tory  of  the  United  States  north¬ 
west  of  the  Ohio,  139,  329. 

Original  and  appellate  jurisdiction 
of  the  National  Judiciary,  212, 
300.  Suggestions  respecting  it, 
213-228.  Of  inferior  tribunals, 
214,  218.  On  the  exclusion  of 
the  one  by  the  other,  215. 

P. 

Paper  money,  prohibited,  146, 
147,  148,  149,  296.  In  the 
Revolution,  148,  149. 

Pardons,  not  extending  to  impeach¬ 
ment,  88,  170,  172,  298.  By 
the  President,  171,  298. 

Parliament,  powers  and  rights  of, 
over  the  Colonies,  23,  271. 
Stamp  Act  passed  by,  24.  May 
be  prorogued  by  the  King,  92. 

Parties  to  a  suit,  186,  203,  300, 
304,305. 

Party,  Washington  on  the  effects 
and  evils  of,  312,  314. 

Patents  for  inventions,  118,  294. 

Peace  of  1783,  indifference  of  the 
States  as  to  taxation  after  the, 
during  the  Confederation,  31. 
Disregard  of  the,  under  the 
Confederation,  250.  Definitive 
Treaty  of,  between  the  United 
States  of  America  and  his  Bri¬ 
tannic  Majesty,  324.  Provis¬ 
ional  Articles  of,  signed  at  Paris, 
in  1782,  324. 

Penal  sanctions,  the  Confederation 
without,  30. 

Penn,  William,  18.  Versus  Lord 
Baltimore,  201. 

Pennsylvania,  Delaware  a  depen¬ 
dency  upon,  12.  Settled,  16. 
Proprietary  government  of,  18. 
Adopts  the  Constitution,  35. 

People,  the  Constitution  framed  by 
the,  36.  Elect  Representatives, 
50,  289.  Right  of  the,  to  as¬ 
semble,  and  petition  for  redress 
of  grievances,  264,  303. 

Per  pais,  trial,  228. 

Petition,  right  of,  264,  303.  Claim- 


366 


INDEX. 


ed  in  the  Declaration  of  Rights 
of  1774,  274.  Rejected  by  the 
King  of  Great  Britain,  278. 

Philadelphia,  Convention  at,  for 
forming  the  Constitution,  34. 

Piracies,  power  to  define  and  pun¬ 
ish,  119,  294. 

Places  of  trial  of  crimes,  228,  229, 
300,  304. 

Pledges  of  Electors,  166,  167. 

Plymouth  Company,  15.  Settle¬ 
ment  by  the,  15,  16.  Union  of, 
with  Massachusetts,  16. 

Poll  taxes,  103,  104,  295. 

Postmaster-general,  suits  by  the, 
205. 

Post  offices,  117,  294. 

Post  roads,  117,  294. 

Powers  and  privileges,  of  both 
Houses  of  Congress,  90,  292. 
Reserved  to  the  States  and  peo¬ 
ple,  266,  305.  See  Congress, 
President,  Representatives, Sen¬ 
ate,  Senators,  and  States. 

Preamble  of  the  Constitution  and 
the  exposition  of  it,  37,  289. 

Presentments,  230,  231,  232,  304. 

Presents  to  persons  in  office,  from 
foreign  powers,  prohibition  of, 
145,  296. 

President  of  the  Senate,  Vice- 
President  of  the  United  States, 
74,  291.  Senatorial  chair  vacat¬ 
ed  by  the,  76,  291.  See  Vice- 
President. 

President  of  the  United  States, 
impeachment  and  trial  of  the, 76, 
78,  83,  291.  Cannot  pardon,  in 
trials  by  impeachment,  88,  170, 
172,  298.  Power  of  the,  to  ap¬ 
prove  and  negative  laws,  9S, 
293.  Bills  not  approved  by  the, 
at  the  adjournment  of  Congress, 
98,  100,  293.  Commander-in- 
chief  of  the  army,  navy,  and 
militia,  127,  170,  298.  Power 
of,  to  call  out  the  militia,  127. 
Duration  and  tenure  of  office  of 
the,  159,  160,  296.  Re-eligi- 
bility  of  the,  160,  161.  Vice- 
President  performing  the  duties 


of,  161,  163,  164,  168,  298, 
306.  Mode  of  electing  the,  161, 
163,  164,  296,  297,  395. 

Qualifications  for,  167,  297. 
Resignation  of  the,  168,  298. 
Provision  for  vacancy  of  the 
office  of,  168,  298,  306.  His 
compensation,  168,  169,  298. 
Oath  taken  by  the,  169,  298. 
Powers  of,  170,  29S  ;  to  re¬ 
quire  the  opinions  of  the  Heads 
of  Departments,  170,  171, 

298  ;  to  grant  reprieves  and 
pardons,  171,  298  ;  to  make 
treaties,  172,  298  ;  appoint¬ 
ments  to  office,  172-175,  299. 
Removal  from  office  by  the, 
174.  Duties  of,  175,  299.  To 
give  information  to  Congress, 
and  recommend  measures,  176, 
299.  To  convene  and  adjourn 
Congress,  176,  299.  To  re¬ 
ceive  ambassadors  and  other 
public  ministers,  176,  299.  To 
take  care  that  the  laws  be  faith¬ 
fully  executed,  177,  299.  To 
commission  all  the  officers  of 
the  United  States,  178,  299. 
Incidental  powers  of  the,  178. 

Press,  liberty  of  the,  255,261,  303. 
Restriction  of  the,  in  foreign 
countries,  262.  Loose  reasoning 
on  the,  263.  Licensing  the, 
263.  Licentiousness  of  the,  264. 

Princeton,  adjournment  of  the 
Continental  Congress  to,  129. 

Private  property,  on  taking  for 
public  uses,  230,  233,  304. 

Privilege  from  arrest,  93,281,292. 

Privileges  of  citizens,  242,  SOI. 
See  Controversies,  and  Judic¬ 
iary. 

Prizes,  jurisdiction  in  cases  of,  194, 
195.  See  Captures. 

Prohibitions,  on  the  United  States, 
142,  295.  On  the  States,  146, 
296.  Of  religious  tests,  252, 
253,  259,  303.  Of  religious  es¬ 
tablishments,  255,  259,  303. 

Property,  private,  taken  for  public 
use,  230,  233,  304. 


INDEX. 


367 


Proprietary  governments,  in  the 
American  colonies,  17, 18.  In¬ 
troduction  of  the  common  law 
into,  20. 

Proroguing,  by  the  King,  and  by 
governors,  92. 

Protecting  domestic  manufactures, 
113. 

Provincial  Assemblies,  17.  Disso¬ 
lution  of,  by  English  governors, 
92,  272. 

Provincial  governments,  in  the 
American  colonies,  17.  Intro¬ 
duction  of  the  common  law  into 
the,  20. 

Provisional  Articles  of  Peace,  sign¬ 
ed  at  Paris,  in  1782,  324. 

Public  acts,  records,  and  judicial 
proceedings,  the  faith  to  be  giv¬ 
en  to,  135,  301. 

Public  credit,  Washington  on,  317. 

Public  debts,  see  Debts. 

Public  lands,  owned  by  the  Crown, 
29.  Concessions  of,  by  Virginia 
and  New  York,  29.  See  Ceded 
places. 

Public  ministers,  appointment  of, 
172,  173,  299.  To  be  received 
by  the  President,  176,  299.  Ju¬ 
risdiction  of  the  Judiciary  over, 
186,  192,  213,  221,  223,  300. 

Public  money,  see  Money. 

Punishments,  on  the  infliction  of, 
under  the  Confederation,  30.  In 
cases  of  impeachment,  unpar¬ 
donable,  88,  170, 171,  298.  Of 
members  of  Congress,  91,  292. 
For  counterfeiting  securities  and 
current  coin,  116,  294.  Of  pi¬ 
racies,  felonies,  and  offences 
against  the  law  of  nations,  119, 
294.  Of  treason,  134,  135, 
301.  Of  innocent  persons,  135. 
Cruel  and  unjust,  not  to  be  in¬ 
flicted,  23S,  304. 

Q. 

Qualifications,  for  electors  of  Rep¬ 
resentatives,  50,  51,  289.  For 
Representatives,  54,  73,  289. 
For  Senators,  73,  291.  For 


President  and  Vice-President, 
167,  297,  306. 

Quartering  soldiers,  265,  303. 

Quorum,  in  the  Houses  of  Con¬ 
gress,  90,  91,  292.  In  voting 
for  President  and  Vice-Presi¬ 
dent,  162,  163,  297,  306. 

R. 

Ratifications  of  the  Constitution, 

254,  303. 

Recaptures,  196. 

Receipts  of  public  money,  account 
of,  to  be  published,  144,  145, 
296. 

Records  and  laws  of  States,  admis¬ 
sion  and  proof  of,  135,  301. 
Effect  to  be  given  to,  136. 

Regulate  commerce,  power  of 
Congress  to,  108,  109,  110, 
141,  294.  Meaning  of  the 

words,  109.  See  Commerce. 

Religion,  freedom  of,  252,  253, 

255,  259,  303.  Right  of  gov¬ 
ernment  to  interfere  in,  260. 
Washington  on  the  necessity  of, 
to  political  prosperity,  316. 

Religious  establishments,  unconsti¬ 
tutional,  255,  259,  303. 

Religious  tests,  252,  253,  259, 
303. 

Removals  from  office  by  the  Pres¬ 
ident,  174. 

Representation,  in  Parliament, 
24,  273.  The  principle  of,  50, 
57.  The  right  of,  273.  In  the 
Territory  northwest  of  the  river 
Ohio,  332. 

Representatives  under  the  Colonial 
Governments,  17,  19. 

Representatives,  House  of,  in  Con¬ 
gress,  49,  50,  289.  Election  of, 
by  the  people,  50,  89,  289  ; 
advantages  of  it,  50,  51.  Quali¬ 
fications  of  electors  of,  50,  51, 
289.  Serve  two  years,  52,  289. 
Knowledge  and  experience  re¬ 
quisite  in,  52.  Qualifications  of, 
54,  73,  289  ;  as  to  age,  54,  73, 
289  ;  as  to  citizenship,  54,  55, 
73,  290  ;  as  to  inhabitancy,  54, 


368 


INDEX 


55,  74,  290.  Apportionment  of, 
56-62,  104,  290.  Restriction  as 
to  the  number  of,  56,  61,  290. 
On  the  manner  of  apportioning, 
58,290.  Supplying  vacancies  in 
the,  62,  290.  Choice  of  Speak¬ 
er,  and  other  officers  by  the,  62, 
290.  The  power  of  impeach¬ 
ment  in  the,  62,  63,  85,  87,  290. 
Not  impeachable,  83.  Punish 
for  contempts,  85,  98.  Disqual¬ 
ifications  of,  94,  292.  Bills  for 
raising  revenue,  to  originate  with 
the,  96,  293.  Cannot  be  elec¬ 
tors  of  President  and  Vice-Pres¬ 
ident,  161,  297.  Choice  of 
President  by,  162,  163,  165, 

297,  305.  See  Congress. 

Reprieves,  granted  by  the  Presi¬ 
dent,  171,  298.  See  Pardons. 

Reprisal,  letters  of  marque  and, 
120,  121,  294.  Forbidden  to 
the  States,  146,  296. 

Republican  form  of  government, 
guarantied  to  the  several  States, 
244,  245,  302. 

Republics,  remarks  on,  267,  270. 

Reserved  powers  and  rights,  of  the 
people,  264,  265,  266,  305. 
Of  the  States,  under  the  Confed¬ 
eration,  279. 

Resignation  of  President,  168, 

298. 

Resolves,  contained  in  the  Declar¬ 
ation  of  Rights,  273. 

Retrospective  laws,  prohibition  of, 
by  the  Union,  144,  295  ;  by  the 
States,  146,  150,  296. 

Revenue,  measures  of  Great  Brit¬ 
ain  for  raising,  in  the  American 
Colonies,  24,  271.  Want  of 
power  respecting,  under  the 
Confederation,  30.  Bills  for 
raising,  96,  293.  Power  of 
Congress  to  raise,  101,  293. 
See  Duties,  and  Taxes. 

Revolution,  the  American,  politi¬ 
cal  state  of  the  Colonies  at  the 
time  of  the,  22.  Origin  of  the, 
24.  Government  during  the, 
26.  Army  of  the,  122.  Bills 


of  credit  in  the,  148,286.  Le¬ 
gal  tender  during  the,  149.  Con¬ 
fiscation  laws,  150.  Aliens  made 
by  the,  212. 

Rhode  Island,  settled,  16.  Char¬ 
ter  government  of,  19.  Pro¬ 
ceedings  of,  respecting  the  Fed¬ 
eral  Constitution,  34. 

Rights,  of  discovery,  13.  Declar¬ 
ation  of,  by  the  Continental  Con¬ 
gress,  in  1774,  24,  271.  Reserv¬ 
ed  to  the  States  and  people,  264, 
265,  266,  305.  Claimed  in  the 
Declaration  of  Independence, 
275.  Nee  Bill  of  Rights. 

Rules  of  Congress,  91,  292. 

S. 

Salary  of  the  President,  168,  169, 

298.  See  Compensation. 

Salvage,  196. 

Search-warrants,  237,  303. 

Seat  of  the  government  and  other 
ceded  places,  power  of  Congress 
over  the,  128,  295. 

Second  trials,  prohibition  of,  230, 
232,  304.  See  Trials. 

Secrecy  in  Congress,  92,  292. 

Self-accusation,  criminals  not 
bound  to,  230,  233,  304. 

Senate,  in  Congress,  importance  of 
its  existence,  64.  Nature  of  the 
representation  and  vote  in  the, 
67,  290.  Supply  of  vacancies 
in  the,  72,  291.  President  of 
the,  74,  291.  Choice  of  officers 
by  the,  74,  75,  291.  Trial  for 
impeachment,  by  the,  76,  78, 
85,  291.  Power  of  the,  in  re¬ 
gard  to  treaties  and  appoint¬ 
ments  by  the  President,  172, 
182,  299.  Filling  of  vacancies 
during  the  recess  of  the,  175, 

299.  To  concur  in  the  appoint¬ 
ment  of  judges,  182,  299.  See 
Congress,  and  Senators. 

Senators,  67-69,  89,  290.  Num¬ 
ber  of,  67,  70,  290.  Chosen  by 
the  legislatures,  67,  69,  290. 
Their  term  of  service,  67,  71, 
290.  Change  of  one  third  of 


INDEX. 


369 


the,  72,  290.  Qualifications  of, 
73,  291.  On  the  impeachment 
of,  83.  Disqualifications  of, 
94,  292.  Cannot  be  electors  of 
President  and  Vice-President, 
161,  162,  297.  See  Congress, 
and  Senate. 

Settlement  of  the  United  States, 
and  notice  of  the,  15. 

Ships  of  war,  not  to  be  kept  by 
the  States  in  time  of  peace,  156, 
296. 

Silver  to  be  legal  tender  in  pay¬ 
ment  of  debts,  146,  149,  296. 

Slave  trade,  abolition  of  the,  by 
the  United  States,  142,  295. 

Slaves,  apportionment  of  Repre¬ 
sentatives  according  to,  56,  57, 
290.  Prohibition  of,  in  the 
Northwestern  Territory,  140, 
337.  Importation  of,  142,295. 
Duties  on,  142,  295.  Examin¬ 
ation  of,  by  torture,  233.  On 
delivering  up  fugitive,  243, 
301,  337. 

Soil,  Indian  right  to  the,  12.  Eu¬ 
ropean  claim  to  the,  13. 

Soldiers,  on  quartering,  265,  303. 

South  Carolina,  settled,  16.  Gov¬ 
ernment  of,  at  the  commence¬ 
ment  of  the  Revolution,  18. 
Adopts  the  Constitution,  35. 

Southern  Colony,  under  the  char¬ 
ter  of  James  I.,  15. 

Speaker,  of  the  House  of  Repre¬ 
sentatives,  choice  of,  62,  290. 
Of  the  House  of  Commons, 
must  be  approved  by  the  King, 
62. 

Speech,  see  Liberty. 

Stamp  Act,  24. 

Standard  of  weights  and  meas¬ 
ures,  116,  294. 

Standing  armies,  impolicy  of,  265. 
Resolution  respecting  the  Bri¬ 
tish,  in  America,  274. 

State  Bills  of  Rights,  48,  256. 
See  Bills  of  Rights,  and 
Church. 

State  courts,  remarks ,  on  the  ju¬ 
risdiction  of,  219.  Non-inter¬ 


ference  of  the  National  with, 
224.  See  Appellate,  and  Ju¬ 
diciary. 

State  debts,  216.  See  Debts. 

States,  governments  of  the,  during 
the  Revolution,  27.  Confeder¬ 
ation  adopted  by  the,  28,  279, 
Constitution  adopted  by  the, 
34,  303.  Abbe  Mably  on 

neighboring,  38.  Importance 
of  union  among  the,  38,  43, 
310.  Separation  of,  into  con¬ 
federacies,  39.  Burdens  on, 
if  disunited,  43.  Voting  by, 
under  the  Confederation,  56, 
68,281.  Apportionment  of  di¬ 
rect  taxes  among  the,  56-60 , 97, 
104,  290,  295.  Restraints  on, 
respecting  taxation  and  duties, 

106,  188,  296.  Paramount 
authority  of  the  Union  and  the, 

107.  Taxation  by,  111,  296. 
Impotency  of,  respecting  natur¬ 
alization  and  bankrupt  laws, 
114,  115.  Not  to  engage  in 
war,  120,  156,  296.  Rights 
reserved  by  the,  over  ceded 
places,  130.  The  faith  and 
credit  to  be  given  to  the  public 
acts,  records,  and  judicial  pro¬ 
ceedings  of  the,  135,  301.  Ad¬ 
mission  of  New,  into  the  Union, 
137,140,301,  336.  The  de¬ 
livering  up  of  fugitive  criminals 
and  slaves  by,  140,  242,  243, 
301,  337.  Prohibitions  on  the, 
146,  156,  188,  296  ;  as  to  trea¬ 
ties,  alliances,  and  confedera¬ 
tions,  146,  156,  296  ;  as  to 
granting  letters  of  marque  and 
reprisal,  146,  296  ;  as  to  coin¬ 
ing  money,  146,  147,  296  ;  as 
to  emission  of  bills  of  credit, 
146,  147,  296  ;  as  to  making 
any  thing  but  gold  and  silver 
coin  a  legal  tender  in  payment 
of  debts,  146,  149,  296  ;  as  to 
passing  any  bill  of  attainder,  ex 
post  facto  law,  or  law  impairing 
the  obligation  of  contracts,  146, 
150,  296  ;  as  to  granting  titles 


370 


INDEX. 


of  nobility,  146,  156,  296.  Du¬ 
ties  by,  unconstitutional,  156, 

296.  Not  to  keep  troops,  or 
ships  of  war,  in  time  of  peace, 
156,  296.  Implied  prohibitions 
on  the,  157.  Voting  by,  in  the 
choice  of  President,  162,  163, 

297,  306.  Importance  of  the 
National  Judiciary  to  the  tran¬ 
quillity  and  sovereignty  of  the, 
186,  187.  Jurisdiction  in  con¬ 
troversies  between,  186,  187, 
199,  200,  221,  223,  300  ;  be¬ 
tween  a  State  and  citizens  of 
another  State,  186,  187,  199, 

201,  223,  300  ;  in  suits  brought 
by,  and  against  a  State,  186, 

202,  217,  305  ;  between  citi¬ 
zens  of  different,  186,  187, 

205,  221,  300  ;  of  the  same 
State  claiming  lands  under  grants 
of  different,  186,  187,  209,  221, 
300  ;  between  a  State  and  the 
citizens  thereof,  and  foreign 
States,  citizens,  or  subjects, 
186,  187,  210,  211,  221,  223. 
In  debt,  at  the  adoption  of  the 
Constitution,  216.  Privileges 
and  immunities  of  citizens  of 
the,  242,  301.  Guarantee  of 
republican  government  to  the, 
244,  245,  302.  Power  of,  as  to 
amendments  of  the  Constitu¬ 
tion,  246,  302.  Disregard  of 
treaty  stipulations  by  the,  un¬ 
der  the  Confederation,  250. 
Oath  of  office  to  be  taken  by 
members  of  the  governments 
of,  252,  303.  Ratification  of 
the  Constitution  by  the,  254, 
303.  Powers  not  delegated  to 
the  United  States,  by  the,  266, 
305.  Representation  of  the, 
under  the  Confederation,  280. 
Restrictions  on  the,  by  the  Con¬ 
federation,  281.  Committee 
of  the,  under  the  Confederation , 
285,  287.  See  Confederation, 
Congress,  and  Union. 

Supremacy  of  the  Constitution, 
laws,  and  treaties,  249,  302. 


Supreme  Court,  181,  299.  Pos¬ 
itively  required,  182.  See  Ju¬ 
diciary. 

Swedes,  in  Delaware,  12. 

T. 

Tacitus,  on  examination  by  torture, 
233. 

Tariff',  113. 

Taxation,  under  the  Confederation, 
28,  30.  Power  of  Congress 
respecting,  101,  141,  293;  limit 
to  this  power,  104,  293.  By 
individual  States,  111,  296.  See 
Taxes. 

Taxes,  weakness  of  the  Continen¬ 
tal  Congress  respecting,  30, 102. 
Apportionment  of  direct,  56- 
60,  97,  104,  290.  Bills  for 
raising,  96,  97,  293.  Power  of 
Congress  to  lay  and  collect,  101, 
103,141,293.  Direct  and  indi¬ 
rect,  103.  Laying,  and  reg¬ 
ulating  commerce,  111.  On 
imported  slaves,  142,  29-5.  See 
Taxation. 

Tender,  in  payment  for  debts,  146, 
149,  296. 

Tenure  of  office,  of  Representa¬ 
tives,  50,  52,  289.  Of  Sena¬ 
tors,  60,  71,  290.  Of  Presi¬ 
dent,  159,  160,  296.  Of  Vice- 
President,  159,  161,  296.  Of 
Judges,  181,  182,  300.  By 
Judges,  in  different  States,  206. 

Territories,  government  of,  138, 
301.  Ordinance  for,  by  Nathan 
Dane,  139,  329. 

Testimony,  see  Witnesses. 

Tests,  religious,  unconstitutional, 
252,  253,  259,  303.  See  Reli¬ 
gion. 

Title  to  the  soil  of  America,  claim¬ 
ed  by  the  Indians,  12  ;  by  the 
Europeans,  13. 

Titles  of  nobility,  unconstitutional, 
145,  146,  156,  296. 

Tonnage  duties  by  the  States,  un¬ 
constitutional,  106,  156,  296. 
See  Duties. 

Tories,  see  Loyalists. 


INDEX. 


371 


Torture,  examination  by,  con¬ 
demned,  233. 

Trade  with  the  Indians,  113.  See 
Commerce. 

Tranquillity,  on  insuring  domestic, 
42,  244,  289,  302. 

Transportation  to  England,  for  tri¬ 
al,  271. 

Treason,  impeachment  for,  81, 83, 
299.  Punishment  of,  134,  135, 
301.  Persons  liable  to  removal 
from  office  for,  178, 299.  Defi¬ 
nition  of,  239,  300.  Construc¬ 
tive,  240.  Two  kinds  of,  240. 
Evidence  of,  241, 300.  Trans¬ 
portation  to  England  for  trial 
for,  271. 

Treasury,  drawing  money  from 
the,  144,  295. 

Treaties,  under  the  Confederation, 
29,283.  Of  peace,  in  1783,  31, 
250.  States  forbidden  to  enter 
into,  146,  296.  Power  of  the 
President  and  Senate  respecting, 
172,  298.  Supremacy  of  Con¬ 
stitution,  laws,  and,  249,  302. 
Definitive, of  peace,  between  the 
United  States  of  America  and 
his  Britannic  Majesty,  in  1783, 
324  ;  provisional  articles  of,  in 
1782,  324.  Between  France 
and  Great  Britain,  324.  See 
Judiciary. 

Trial,  of  impeachment,  76,  78, 
291.  By  jury,  227,  228,  300, 
304.  Of  crimes,  228,  300. 
Places  for,  228,  229,  300,  304. 
Prohibition  of  second,  230,  232, 
304.  Transportation  of  colo¬ 
nists  to  England  for,  271.  Rights 
respecting,  claimed  in  the  Dec¬ 
laration  of  Rights,  of  1774,  274. 
See  Accused. 

Troops,  in  time  of  peace,  not  to 
be  kept  by  the  States,  156,  296. 
Quartering,  265,  303. 

True  bills  of  indictment,  232. 

U. 

Ulpian,  on  examination  by  torture, 
233. 


Unconstitutionality  of  laws,  251. 

Uniformity,  of  duties,  imposts,  and 
excises,  44,  101,  104,  294,  295. 
Of  interpretation  and  operation 
of  the  powers  of  government  and 
its  laws,  181.  Of  judicial  de¬ 
cisions,  221,  253. 

Union,  of  the  States,  condition  of 
the,  during  the  Revolution,  and 
under  the  Confederation,  26, 
28,  29,  32,  38.  Importance  of, 
38,  43,  310.  Conflict  of,  with 
individual  States,  107.  Admis¬ 
sion  of  New  States  into  the, 
137,  301,  336.  Provision  for 
the  accession  of  Canada  to  the, 
under  the  Confederation,  287. 
Washington  on  the  importance 
of,  310.  Causes  which  may 
disturb  the,  312.  See  States. 

United  States,  Definitive  Treaty 
of  Peace  between  his  Britannic 
Majesty  and  the,  324.  Bounda¬ 
ries  of  the,  according  to  the 
treaty  of  1783,  325.  See  Con¬ 
gress,  Constitution,  and  States. 

Unity  of  the  Executive,  159. 

Usurpation,  Washington  on,  316. 

V. 

Vacancies,  in  the  House  of  Repre¬ 
sentatives,  on  supplying,  62, 
290.  In  the  Senate,  72,  291. 
Of  the  Presidency  and  Vice- 
Presidency,  168,  298,  306. 

Appointments  to  fill,  during  the 
recess  of  the  Senate,  175,  299. 
See  Appointments,  and  Office. 

Veto,  the  power  of  the  President, 

98,  293.  Restraint  upon  it,  98, 

99,  100,  293. 

Vice-President  of  the  United 
States,  34.  President  of  the 
Senate,  74,  291;  reasons  for  it, 
74.  Vote  of  the,  74,  291. 
Vacation  of  the  Senatorial  chair 
by  the,  76.  Impeachment  of 
the,  81,  83,  299.  Term  of 
office  of  the,  159,  161,  296. 
Acting  as  President,  161,  163, 
164,  168,  298,  306.  Originally 


372 


INDEX 


an  equal  candidate  for  the  office 
of  President,  161,  297.  Mode 
of  electing,  161,  163,  164,  296, 
306.  Qualifications  for,  167, 
297,  306.  Provision  for  vacan¬ 
cy  of  the  office  of,  168,  298, 306. 

Virginia,  the  name  given  to  the 
Southern  Colony,  15.  Settle¬ 
ment  of,  15,  16.  Government 
of,  at  the  commencement  of  the 
Revolution,  18.  Concession  of 
public  lands  by,  29.  Commis¬ 
sioners  appointed  by,  in  1785, 
and  in  1786,  33.  Adopts  the 
Constitution,  35. 

Virtue,  see  Morality. 

Voting,  in  Congress,  under  the 
Confederation,  56,  6S,  281  ; 
under  the  Constitution,  57,  68. 
By  the  President  of  the  Senate, 
74,  291.  For  the  choice  of 
President  and  Vice-President, 
162,  163,  297,  305. 

Voyages,  former  circuity  of,  105. 

W. 

War,  declaration  of,  120,  141, 


294.  States  not  to  engage  in, 
120,  156,  296. 

Warrants  for  search,  237,  303. 

Washington,  George,  inaugurated 
President  of  the  United  States, 
34.  Militia  called  out  under  his 
administration,  127.  Selection 
of  the  Seat  of  the  Government 
by,  129.  President  of  the  Fed¬ 
eral  Convention,  and  Deputy 
from  Virginia,  254.  Farewell 
Address  of,  306. 

Weights  and  measures,  116,  294. 

Welfare,  general,  on  promoting 
the,  44,  102,  289,  294. 

Witnesses,  persons  accused  not 
bound  to  be,  against  them¬ 
selves,  230,  233,  304.  Ex¬ 
amination  of,  by  torture,  233. 
In  behalf  of  accused  persons, 
234,  235,  304.  Two,  neces¬ 
sary  to  conviction  of  treason, 
241,  300. 

y. 

Yeas  and  nays  in  Congress,  92, 
292. 


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